Why Critics of State and Federal Workplace Safety Systems Might be Right
The fatal explosion earlier this year at a Texas fertilizer plant that hadn’t been inspected since 1985 brought attention to the nation’s dysfunctional and ineffective system of keeping employees -- both in the public and private sectors -- safe.
The explosion was deadly. When the fertilizer plant in West, Texas, blew up and then caught fire on the evening of April 17, 15 people died (most of them first responders) and 160 were injured. It could have been worse. If the explosion had occurred earlier in the day, the full complement of factory workers would have been on the job.
The events at the plant underscored a devastating fact of work life: More than 10 people a day die as a result of a traumatic injury on the job, according to the Centers for Disease Control and Prevention. But the explosion did more than highlight dangers. It raised immediate questions about workplace safety inspections and oversight -- not just in Texas, but also nationally. “Obviously we took notice of West, Texas,” says Michael Wood, a longtime administrator of occupational safety and health programs at the state level and now head of the Oregon Occupational Safety & Health Division. “We got calls from reporters asking if that could happen [where they were], and I said I can’t guarantee that it won’t.”
Two revelations in particular caught the attention of the public and press. The first was that the plant hadn’t been subject to a safety inspection since 1985. The second was that a key player seemed to be missing in the safety equation: the Texas Occupational Safety and Health Administration. In fact, the two revelations are directly related. Texas doesn’t have an occupational safety and health administration. The responsibility for workplace safety in Texas falls to the U.S. Occupational Safety and Health Administration (OSHA), which is stretched pretty thin these days.
The country, in short, has a bifurcated system of oversight. The federal OSHA is responsible for workplace safety in some states, while in others, state-run OSHA offices handle the job themselves. The questions, then, for states on either side of the bifurcation are: How effective is the oversight of workplaces -- from oil rigs and fertilizer plants to office buildings and beauty salons? Who’s in charge? How well are they doing their jobs? These are surprisingly complicated questions with no easy answers.
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In part, the complexity is rooted in the history of the workplace safety system. The Occupational Safety and Health Act of 1970 established the federal OSHA to oversee and improve workplace and occupational safety. Because nearly half the states already had their own occupational safety and health programs in place in 1970, a key concession in the law was that those states be allowed to continue their own programs.
It gets even more muddled. U.S. OSHA doesn’t cover state and local employees, only private-sector and federal workers. So five states operate their own bifurcated systems whereby the feds cover private-sector and federal workers and the state covers state and local employees. Twenty-two states have programs that cover all workers -- private and public. The remaining 32 states are covered by U.S. OSHA. (Most state programs were put in place in the 1970s, soon after passage of the federal law; few states have elected to take over responsibility for workplace health and safety since then, although Illinois did extend oversight to state and local employees in 2009.)
Despite the jurisdictional jumble there is one absolute under the 1970 law: All state programs -- whether they cover all employees or just state and local workers -- are required to meet federal standards. Those standards, however, aren’t really clear, and are therefore the subject of constant debate. Popular wisdom has it that state programs have to be at least as effective in improving workplace safety and health as federal OSHA programs. There’s nothing in the federal statute, though, that says that.
“When it comes to ‘effectiveness,’ that’s a tangled web that we’re trying to figure out,” says Michael Silverstein, who recently retired from his position as head of the Washington state Division of Occupational Safety and Health. As a physician with expertise in occupational health and safety, Silverstein has a long history of working both in the private sector and in federal and state OSHA offices.
Indeed, “effective” is a loaded word in the occupational health and safety world. How do the feds and states measure “effective?”
Clearly, when the state of Nevada, which runs its own safety inspection program, experienced 25 workplace fatalities between January 2008 and June 2009, mostly in the construction trades and from falls, its program could not be described as effective. The string of deaths was the subject of a Pulitzer Prize-winning series in the Las Vegas Sun News that uncovered a system of weakened safety requirements and unsafe conditions tolerated by the builders, the regulators and the unions.
But fatality rates only tell you so much. Washington state, with one of the most highly respected safety inspection programs in the nation, had a single bad day on April 6, 2010, when seven workers died in an oil refinery explosion. Nobody at that juncture deemed the state’s program to be ineffective. Fatalities can be fluky and come in bunches, so it can be difficult to make any solid judgment about a state program’s effectiveness based on an episodic event, even one as horrific as losing half a dozen or more workers in one incident.
Moreover, the difference in degree of regulatory oversight can be so slight as to be meaningless, even in a common area of hazard. It’s hard to pin down a standard. For instance, a significant percentage of on-the-job deaths are in construction and due to falls. Both federal and state OSHAs demand that employers put in place protections from falls and falling objects within a proscribed distance of where employees are working. It’s called a protection rule. Oregon’s Wood points out that there’s a 10-foot protection rule in residential construction in Oregon and Washington, while U.S. OSHA sets it at six feet. Which is more effective? “I wish there was an easy statistical way to answer that question,” Wood says.
Another significant problem is that the meaning of “effective” has become more amorphous, says Kevin Beauregard, who runs North Carolina’s OSHA program. Beauregard, who chaired the Occupational Safety and Health State Plan Association, which represents the 27 states with full or partial responsibility for workplace safety, says, for example, that there used to be a formula for “effective” that had to do with things like number of workers in certain industries in relation to numbers of health and safety inspectors.
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Even if one were to accept an input measure like number of inspectors as a valid way to determine “effectiveness,” industry has evolved and the nature of workplace hazards constantly changes, says Beauregard. What represents “effective” when it comes to numbers of inspectors isn’t clear anymore. “If you look at the makeup of North Carolina versus a state like Georgia [which is under the jurisdiction of U.S. OSHA], they’re almost identical from the standpoint of high-hazard industries,” says Beauregard. “We have 114 compliance officers, and the feds [in Georgia] have half that.”
A Governing analysis of workplace health and safety data from North Carolina and Georgia from 2003 to 2011 indicates that on the private-sector side, rates of illness and injury are about the same in the two states. There is some very limited data -- for 2008 and 2009 -- suggesting that injury and illness rates among public-sector workers are lower in North Carolina, where, unlike Georgia, state and local workers come under the state safety inspection program.
A 2011 U.S. OSHA inspector general’s report specifically took up the question of whether it was possible to assess if a state program was “at least as effective” as federal OSHA-administered programs. The conclusion was that given the current state of workplace safety and health metrics and data, it is impossible to say. The inspector general pointed out that, historically, workplace safety and health has been evaluated mostly on the basis of inputs (such as budgets and staffing numbers) and outputs (number of inspections, citations and fines), and not on actual outcomes. (Outcomes would be markers such as workplace injury and illness rates, fatalities, work days lost due to injury or illness, and workers’ compensation claims.)
In the 2011 report, the OSHA inspector general made four recommendations:
- Define effectiveness in terms of the impact of state OSHA
- programs on workplace safety and health.
- Design measures to quantify the impact of state safety inspections on workplace safety and health.
- Measure the federal OSHA program to establish a baseline to evaluate state program effectiveness.
- Assure effectiveness by revising the monitoring processes to include comparisons of state and federal OSHAs.
“It can’t just be number of inspections done or penalties,” adds Silverstein, who is also a former director of policy for U.S. OSHA. “You have to look at the bottom line of injuries and illnesses and whether or not a government program has impact, and that’s a tricky thing to figure out.”
Ideally, of course, there would be accurate and timely numbers from 50 states that spelled out to the OSHA inspector general’s satisfaction how safe workplaces are and how state programs stacked up against the feds and against one another.
Even experts like Peg Seminario, who monitors workplace safety trends for the AFL-CIO, recognize that getting good outcome data is a high hurdle. For one thing, states report to the Bureau of Labor Statistics in different ways. That is, there is no one template for reporting. And some states don’t report at all. In addition, data on workplace illness and injury is, for the most part, self-reported. Few industries have much incentive to detail all the bad things that may be happening on the job. At the same time, there can be a serious lag in data reporting and analysis.
That’s why workplace safety advocates like Seminario don’t think that inputs and outputs are such a bad way to gauge program effectiveness. “We look at the capacity of a state and its ability to enforce the law and to develop and issue their own safety standards,” says Seminario. It’s not just the number of inspectors that matters, she argues, it’s “their experience and ability to assess hazards and bring about change.” Also important, she adds, is the willingness and ability of a state safety inspection program to push for “meaningful enforcement by way of finding violations and assessing penalties.”
Legitimate or not, probably the simplest number to look at is workplace fatalities, and right now, the U.S. is more or less stuck. Workplace fatalities, according to the Bureau of Labor Statistics, declined steadily from 1992 to 2009 and then leveled off, now sitting in the neighborhood of 4,700 a year.
The stall correlates to an increased workload for health and safety programs due to a squeeze on resources. For example, according to U.S. Department of Labor statistics compiled in the AFL-CIO’s 2012 Death on the Job Report, there were 27,845 employees being supervised by each OSHA inspector in 1975. In 2010 that number had ballooned to 54,741. According to seasoned state program veterans like Wood and Beauregard, that trend has its parallel in state programs.
The most recent Occupational Safety and Health State Plan Association report on the status of state plans finds that staffing for all inspectors -- health and safety -- is down 25 percent from 2010 to 2011 alone. More worrisome, the inspectors who are on the job are increasingly less experienced, an April Government Accountability Office (GAO) study found.
A big reason for that is the low pay states offer inspectors. Once trained and put to work by the state, experienced inspectors tend to hop over to higher paying private-sector jobs. That leaves states with a recruiting problem. “[T]he administrator of Hawaii’s state-run program said that, when the program needed to hire 13 inspectors in 2012, too few applicants with the desired level of experience applied,” noted the GAO report. Consequently, the report concluded, “the job announcement was modified to consider applicants with no prior experience.”
What it adds up to is a very mixed and murky picture among the 50 states. “Programs vary widely,” says Randy Rabinowitz, director of regulatory policy with the Center for Effective Government. In her opinion, California has a strong program and regulates more aggressively than OSHA; Washington, Minnesota and Oregon have what she deems “active programs.”
Washington’s Silverstein agrees that there is substantial variation from state to state, and between states and OSHA, “in substance and quality.” States have an advantage, he argues, in that they have some flexibility to go above and beyond federal regulations if they wish to. By way of example, he points to Washington state, which covers farm workers who are exempt under federal law. Meanwhile, California has an illness and injury prevention program in place that OSHA has been trying to implement for years. But Silverstein agrees that there are plenty of state OSHA programs that lag well behind the feds and behind other state counterparts.
The difference among states can be explained rather simply, workplace safety advocates say: political culture. The climate in some states just isn’t very friendly to regulators. One of those states happens to be Texas.
Commenting on the West explosion, Democratic state Rep. Joe Pickett of El Paso said that he thought “the state of Texas is in good shape” in regard to regulating entities that might experience similar catastrophes. He didn’t see the need for any “major changes” in how the state might regulate such industries in the future.
Reinforcing Pickett’s assessment, Nim Kidd, chief of emergency management for the state Department of Public Safety, noted that “[E]ven in the midst of that great tragedy, the system worked.”
It’s no wonder, then, that Silverstein characterizes Texas as a “free-for-all” state. “Texas is unique in that it has no workers’ compensation program at all. And that spills over into how various federal agencies deal with Texas.” The Lone Star State, he says, “gets by with less attention across the board than most states, and so it’s not surprising to me that so many agencies that should have been looking at that plant weren’t.”
So who was at fault in the explosion? “Should OSHA be whacked for West, Texas?” Silverstein asks. His answer: “Yes and no. With all the attention to combustible dust and ammonium nitrate and process safety management rules, the plant should have been in the spotlight.” On the other hand, OSHA may be facing a mission impossible. “Given the number of facilities it oversees,” Silverstein says, “it would take OSHA 130 years to inspect every one of them.”
What Texas may contribute to improvements in on-the-job safety, though, are lessons other states can eventually learn from the disaster -- as they have learned from other catastrophes. For example, in the wake of the 2010 Washington refinery explosion, California beefed up its refinery inspection program, focusing on the same area that was cited as the cause of the Washington catastrophe. Wood says Oregon is certainly interested in what caused the Texas explosion -- if a cause is ever found -- so that his agency might also ramp up inspection efforts accordingly.
A number of safety advocates have suggested that Texas should develop its own state safety inspection program. Based on the range of attitudes toward regulation among the states, workplace safety advocates like the AFL-CIO’s Seminario aren’t at all shy about expressing a clear opinion on that point. Even though federal OSHA inspectors hadn’t been to the West factory in nearly 30 years, she would stick to the feds. “Quite frankly,” she says, “Texas, as a government, is not a strong believer in enforcement.”