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This year’s presidential election has been a war of words and a battle of ideology.
President Barack Obama says his policies help protect people and the economy, while Republican challenger Mitt Romney claims the government has become too intrusive and overregulates businesses to the point that economic growth is stymied.
The debate can be likened to a pendulum – each side argues for a swing in one direction and accuses the other side of going too far in the opposite direction. This theme plays out every four years in a multitude of policy matters, including occupational safety and health.
Because workplace safety is not at the forefront of this year’s presidential race, stakeholders look to historical precedence for clues about what might be expected from an Obama or a Romney victory on Nov. 6.
“The political pendulum swings with OSHA in particular,” said Frank White, global director for Mercer ORC HSE Services in Washington. “Republican presidents and administrations are going to focus less heavily on enforcement, and more heavily on voluntary compliance and compliance assistance. Democrats would be enforcement-heavy.”
Neither the Obama nor the Romney campaigns returned calls requesting comment for this article. However, election-watchers say actions taken by Obama during his first term, statements from Romney on the campaign trail and the current political rhetoric swirling around Capitol Hill suggest the pendulum theme will prove true after the ballots are counted.
Obama’s actions when he first took office reflected the pendulum dynamic. The Department of Labor’s regulatory agencies – including OSHA and the Mine Safety and Health Administration – put more focus on enforcement and pursuing new standards.
Indeed, Secretary of Labor Hilda L. Solis stated on day one that safe and healthy workplaces could be attained through tough enforcement.
“To those who have for far too long abused workers, put them in harm’s way, denied them fair pay, let me be clear – there is a new sheriff in town,” she said to a cheering crowd during her March 2009 swearing-in ceremony.
This pronouncement bothered some stakeholders, who said the comment was proof that the new administration was more concerned with punishing employers than helping them. Furthermore, despite what the current administration says and what some recent studies have concluded, many stakeholders continue to argue that an enforcement-heavy approach does not work.
“We’re disappointed … with how this administration has emphasized the enforcement angle above all others,” said Marc Freedman, executive director of labor law policy with the U.S. Chamber of Commerce in Washington. “The emphasis on enforcement has not yielded results and has, in fact, shown a backsliding in the injury and fatality numbers.”
Data from the Bureau of Labor Statistics shows mixed results. The rate of fatal injuries increased slightly in 2010 from 2009, but was still a small decline from 2008. BLS called the rate of injuries and illnesses requiring days away from work “statistically unchanged” from 2009 to 2010, and the rate of workplace injuries in general per 100 full-time workers declined slightly between those years – 3.6 to 3.5.
Freedman believes these figures show occupational injuries and illnesses have “all but flatlined.” During a recession, he said, statistics such as these typically see a much greater decline.
From some viewpoints, focusing on an alleged failed enforcement approach has turned the relationship between OSHA and employers into a more adversarial one. Amanda Wood, director of labor and employment policy for the National Association of Manufacturers, said members of the Washington-based industrial trade group look forward to working cooperatively with the White House to improve worker safety – something that has been missing during the Obama administration.
“Over the last three years, there’s some more work to be done on that front,” she said.
According to others, the shift to more enforcement was an attempt to address initiatives that were absent during the George W. Bush presidency. Obama appointees placed in leadership positions believe in the government’s role and responsibility to protect workers, according to Peg Seminario, director of occupational safety and health at the AFL-CIO. Most of the leaders appointed by Bush in the 2000s focused on voluntary compliance instead of pushing for stronger worker protections, she said.
Obama’s first term
Regardless of the history, OSHA is taking a tougher stance these days. After Obama appointed epidemiologist David Michaels as head of OSHA, the agency reformulated how penalties are calculated, doubling the average fine levied.
In 2010, OSHA revamped its program targeting employers who willfully ignore safety rules by taking a closer look at employer practices and conducting more mandatory inspections of their worksites. Increased funding went to enforcement activities, and additional compliance officers were hired.
However, one area that did not necessarily follow the pendulum trend was the promulgation of new standards.
“I think one of the things that most people assumed was that the Obama administration would really up its game with respect to standards and regulations,” White said. “That turned out not to be the case.”
All major OSHA standards finalized and issued during Obama’s first four years originated before he entered office: Cranes and Derricks, General Working Conditions for Shipyards, and Hazard Communication. Additionally, the Cranes and Derricks Standard was spurred by tragedy – which typically prompts regulatory action – and the Hazard Communication Standard had broad support from industry in the United States and worldwide.
Abandoned and delayed
Under the Obama administration, OSHA has pursued other major rulemakings that began before Obama took office (such as Combustible Dust and Silica), as well as new proposals (most notably the Injury and Illness Prevention Program rule). However, many of these proposals have missed deadlines laid out in numerous semiannual regulatory agendas, and some were shelved altogether. For instance, an OSHA proposal to reinterpret a rulemaking that would require engineering controls for noise exposure reduction, as well as an OSHA proposed rule change to add a musculoskeletal disorders column to employers’ Form 300 logs, were withdrawn from immediate action in early 2011 following negative feedback from the business community.
Rules that are still being pursued seemed to be stuck in neutral. A proposed rule to change the permissible exposure level for silica is the most prominent. When Safety+Health went to press, the proposed rule had been under review by the Office of Management and Budget for nearly 575 days. The typical review period is 90 days.
These delays have frustrated Obama supporters, and some observers have suggested politics is playing a role. With the GOP linking Obama regulations to the poor economy, some OSHA-watchers speculate that the administration may be intentionally slowing the process to avoid giving the opposition more ammunition.
Freedman takes a different view, saying OSHA’s recent lack of success in the regulatory arena offers a revealing insight.
“I think it reflects the quality of the proposals they’re putting forward,” he said. “They’re so bad they can’t even get through the administration’s review.”
Even Michaels’ No. 1 regulatory policy – I2P2 – has not made much progress since being announced more than two years ago. But these delays may not necessarily be the Obama administration’s fault, the delay of silica notwithstanding. The regulatory process is long and, by some accounts, cumbersome – to the point that the Government Accountability Office noted that promulgating a new standard takes an average of 7.5 years from beginning to end.
Potential second term
Because completing a rulemaking typically takes more than one term, White said I2P2 could retake center stage on OSHA’s regulatory agenda if Obama is re-elected.
“There’s probably a window of opportunity in the first couple years of a second administration to move forward on at least one big initiative, and I2P2 might be it,” he said.
Wood agreed, noting that I2P2 debuted with fanfare, only to slowly fade to the background. But in a second term, stakeholders could see efforts to issue I2P2 “ramp back up again,” she said.
Although some stakeholders have suggested the lack of new standards from the current administration is due to politics surrounding the upcoming election, Seminario doubts that a second Obama term would bring a rush of regulation.
Instead, she believes the administration would continue moving forward on issuing stronger regulations and making progress (even if slow) on developing new rules, and appointing “strong” people to key positions in regulatory agencies. The current anti-regulatory environment likely will not change, she said, particularly if Republicans maintain control of the House or gain a majority in the Senate.
“It’s going to be more difficult to move forward on regulatory protection,” Seminario said. “But I hope we’re going to see some movement because right now we’re not seeing any.”
If Obama is not re-elected, some people have speculated that the outgoing administration might promulgate a rush of so-called “midnight” regulations. Lame-duck administrations have been accused of this in the past.
One week after the election of Bush over Vice President Al Gore in 2000, OSHA – under outgoing President Bill Clinton – issued an Ergonomics Standard. It was subsequently repealed when Bush took office.
“If he doesn’t win, it could be a hectic fall,” Wood said of an Obama loss and the potential for several standards being issued in a short period.
However, the ergonomics rule had been in development for years, and Seminario said it likely would have been finalized regardless of whether Bush or Gore won the 2000 election. Because no current OSHA regulations are in a similar situation, it is doubtful that any “midnight” safety regulations would be issued.
Even so, several GOP lawmakers have sponsored bills in the House and Senate that would bar Obama from issuing such regulations. From Election Day through Jan. 20, the Midnight Rule Relief Act would prohibit the promulgation of rules projected to cost the U.S. economy $100 million or more each year. At press time, the bill was awaiting vote in the full House and action in the Senate.
A Romney administration
If Obama would be expected to continue a progression of regulation and enforcement, albeit slower than he or his supporters would like, what would a Romney administration bring?
Some stakeholders who spoke to S+H hesitated to predict what a White House with no history of administrating occupational safety and health might do.
However, Wood suggested Romney’s appointees to DOL safety agencies likely would examine what had been done during the Obama administration to gain an understanding of previous efforts to improve safety before moving forward.
Romney’s economic plan includes a pledge to conduct an “immediate review” of regulations issued under Obama, and repeal any that “unduly burden” the economy and job creation.
“For every regulation, there are unintended consequences, underestimated costs and unwanted influence from special interests,” Romney said during a March speech in Chicago. “The bureaucratic impulse is to make more rules, never to reduce them. All those regulations erode our freedom and stifle prosperity.”
Romney’s economic plan also proposes a requirement for any agency wishing to develop a new regulation to ensure the rule is zero-cost, meaning any cost of complying with the regulation must be offset by reductions from existing regulatory costs. Such a plan has support from Wood.
“Regulations that are hurting economic growth and job creation are definitely problematic,” said Wood, who would not name specific regulations.
White agreed that a Romney administration likely would swing away from regulation and enforcement, but was less sure if the candidate would roll back any of Obama’s initiatives. For instance, would Romney alter the Severe Violator Enforcement Program?
SVEP, the successor to Bush’s Enhanced Enforcement Program, recalculated OSHA’s penalty formula to double fines.
“OSHA penalties even under this policy aren’t exactly breaking the bank of most companies,” White said. Instead, it could be a question of just how vigorously SVEP and other enforcement initiatives would be applied under Romney.
Equally less certain is what specific workplace safety regulatory priorities Romney’s administrative would take up. Romney’s appointees may take a closer look at potential rules during the standards-setting process, but White doubted a Romney administration would not issue any new rules. Some regulations that cause unease within the business community – such as I2P2 or combustible dust – likely would be off the table, but others that have long been in the works – including those concerning beryllium or silica – could be promulgated.
“There will be particular issues where there’s a consensus that something should be done and that perhaps a regulation is needed. It’s rarely the case where a Republican administration says we don’t need any regulations,” White said.
Not knowing what the economic conditions may be in the future, what a president’s priorities will become, and who might be appointed to key positions makes it harder to predict what approach a new administration will take, he added.
One example is President Ronald Reagan’s administration, for which White worked as a labor official. The administration was conservative during Reagan’s first term but issued more regulations in his second term.
Seminario is far less certain that a Romney administration would have a similar regulatory policy. It would not be a simple pendulum swing but a broad sweep to the right, she said, adding the current orientation of the GOP is that of a far right-wing party “ideologically opposed to government.”
The party is focused on defunding government agencies and blocking regulation – an agenda supported and influenced by corporate money flowing into the political arena, Seminario said. These forces would make for difficult progress in safety and health with a second Obama term, she added, and it would be exacerbated under Romney.
“You won’t see any new rules coming forward,” Seminario said of a Romney presidency. “Any hope of progress is gone, and I think we’re going to be in for a huge fight on issues related to the role of government and regulation, and enforcing safety and health.”