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The 'missing piece'?

May 1, 2010

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Many experts support workplace safety and health programs. But should OSHA force employers to have one?

By Kyle W. Morrison, associate editor

KEY POINTS
  • Safety and health programs are nearly universally considered to be successful in lowering injury and illness rates.
  • Some critics believe a standard mandating a program would be overreaching.
  • A standard could present many potential issues, including how to grandfather in workplaces’ existing programs.

    It was a standard attempted during the Clinton administration, but killed during the Bush administration. As it was originally proposed, proponents believed it had the potential to impact more workers than any other standard to date, while opponents viewed it as overreaching and fraught with problems. Now, some people are wondering if OSHA will try it again. It’s not ergonomics. It’s a safety and health program standard.

    Safety and health programs generally are supported by a wide range of individuals and organizations. Many people believe their implementation at a worksite helps lower worker injuries and illnesses and drives down costs, such as those related to workers’ compensation.

    The idea of a standard requiring such a program, however, is more divisive. Some believe it is the best thing OSHA can implement to ensure a broad impact on workplace safety; others fear it could encroach on how employers manage their businesses. For their part, OSHA supports safety and health programs. “OSHA has concluded that effective management of worker safety and health protection is a decisive factor in reducing the extent and the severity of work-related injuries and illnesses,” an agency spokesperson said in response to questions for this article, pointing out case studies indicating the effectiveness of some programs. However, the extent in which OSHA may go to convince – or even require – employers to have a program remains to be seen. No rulemaking has been added to the agency’s agenda, and OSHA itself has not yet decided the best way to move the issue, be that through regulatory activity, congressional action or some other means, the spokesperson said.

    “OSHA believes strongly in the effectiveness of workplace injury and illness prevention programs, and we are considering a variety of options to encourage all employers to implement these programs,” OSHA administrator David Michaels said in a Feb. 1 Web chat. Three years ago, during testimony before a Senate committee on OSHA’s effectiveness, Michaels was much more forthcoming as to whether or not such a standard was necessary. Referring to his work at the Department of Energy, Michaels said every nuclear weapons facility was required to have its own safety plan.

    The Clinton standard
    During the Clinton administration, OSHA developed a standard that would have required employers to establish a workplace safety and health program to ...

    “We need the equivalent system in which every employer develops its own public health/hazard abatement plan, signed off by the corporation’s CEO,” he said. Michaels’ current public opinion is less adamant, and he has refrained from stating whether he still believes a program standard is necessary. Some stakeholders hope he does.

    Problems with change?

    One such stakeholder is the AFL-CIO. The Washington-based federation of labor unions has long supported OSHA’s adoption of a safety and health program rule, and worked with the Clinton administration in its attempt at one in the 1990s. “I think that’s one of the fundamental missing pieces under the OSHA law,” said Peg Seminario, AFL-CIO’s director of safety and health. OSHA has several individual standards to address specific hazards, but no underlying system to ensure employers are taking steps to protect workers’ health and safety, Seminario said.

    The idea of a standard is far from unprecedented. Seminario noted that some State Plan states require employers to have an occupational safety and health program, as do several workers’ comp laws.

    A far-reaching standard like a safety and health programs rule could bring about a great deal of change – and some fear it also could bring about a lot of problems. “It’s one thing to mandate certain activities; it’s quite another to mandate how a company is managed,” said Zack Mansdorf, a consultant who recently retired as the senior vice president for safety, health and environment at Clichy, France-based L’Oreal.

    Mansdorf suggested that any potential safety and health program standard may not fit every company that would be required to follow it. For instance, imagine a hypothetical company that has no formal safety management program, or perhaps does not have a program that would fall into parameters OSHA required it to have. If that company is successful in mitigating incidents and has low injury or illness rates through its own system, why should it change?

    “One of the problems I think a safety and health program standard would have: Is it going to be the case where they say you may be doing it well, but you have to do it well according to their definition of ‘well’?” said Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, a pro-business group based in Washington.

    Freedman stressed that while it was premature to suggest any safety and health program standard from OSHA would be objectionable, it was a good thing for employers to know the hazards in their workplaces and take appropriate measures to mitigate them. However, he said the decision on how to structure the approach to workplace safety should be left to employers.

    Some believe it is not enough to simply leave the decision of workplace safety programs to the companies themselves. “I definitely think that there are certain industries that should be mandated” to have a workplace safety program, said Dallas Palmer, a safety specialist at Des Moines, IA-based screen door manufacturer EMCO Enterprises Inc. He noted that several industries, including transportation and construction, have risks associated with the job. “Anytime you have a firm that’s inherently dangerous in what they do, they should have a safety program in place,” he said.

    A potential standard that features such divisions has support. Mansdorf suggested an OSHA standard on workplace safety programs could work – and be a good idea – if the standard was structured in a way that would take into account a company’s size, allowing smaller firms to opt out. Or, perhaps, a requirement wherein companies with twice the normal injury rate for their industry would have to establish a program.

    However, putting such limits in a workplace safety and health standard could run counter to the standard’s goal: protecting as many workers as possible. AFL-CIO’s Seminario said a broad approach with a standard is needed to advance workplace safety. “We have got to get on with the business of protecting people,” she said. “We need systemic change, and the only way to do that is through requirements.”

    Survey says ...
    A recent informal survey conducted in the National Safety Council’s Membership News Alert e-newsletter asked council members whether or not a standard requiring worksites to have a safety and health program is a good idea. ...

    In his 2007 testimony, Michaels said a safety and health program standard would be politically difficult to implement but actually could clarify matters by boiling down enforcement to two questions: Does an employer have a plan adequate to protect workers, and is the employer meeting requirements in that plan?

    “Such clarity would benefit regulators and responsible employers, and would give irresponsible companies a clear direction for improvement,” Michaels said during the hearing.

    Potential hurdles

    Despite Freedman’s reservations, he provided a suggestion for any proposed rule: Several associations offer safety and health management systems to help businesses control risks, and OSHA could give its approval to those systems. “One way for it to work better is for OSHA to go out and essentially bless those programs that are already out there,” he said. Under this suggestion, any employer using one of the approved systems would be in compliance with the new regulation.

    However, this approach has its own complications. “I’m not sure there’s any real evidence that mandating a certain management approach is better than another,” Mansdorf said.

    Grandfathering would be another issue that could bring forth many questions. What could OSHA do about all of the workplaces that already have some sort of program in place? Would those programs automatically be in compliance, or would companies have to radically change their programs?

    “Clearly [OSHA doesn’t] want to have to have everyone reinvent the wheel. That would be silly and unproductive,” Freedman said. The original, Clinton-era proposed standard contained a grandfather clause (see “The Clinton standard,” p. 46), but it is not known how OSHA under the current administration would address the issue.

    However the administration chooses to address the issue, it would be wise to move quickly if a standard is to be pursued, Mansdorf recommended. With Democrats at their strongest majority in decades, he said now is the right political climate to get a safety and health program standard through. But because every election cycle brings a renewed chance of losing that majority – and even the presidency – time is of the essence.

    “If they did it right away, it would have a very good chance” of being implemented, Mansdorf said. “If they delay it, then I think their chances are much, much smaller.” Seminario said the union has conveyed to the administration that they believe a safety and health program standard is a “high priority,” echoing a similar comment Michaels issued in his testimony years before he took his current post as OSHA administrator: “OSHA’s first priority should be to issue a comprehensive workplace safety and health program standard.”

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