July 22, 2013

The Obama Worker Safety and Health Legacy: The Fifth Inning and the Possibility of a Shutout; A Big Challenge for Tom Perez

The Senate’s grudging confirmation of Tom Perez as Secretary of Labor was the first piece of good news working people have had out of the federal government for quite some time. I know Perez--as a neighbor, a law school colleague, Maryland’s labor secretary, and a civil rights prosecutor. He’s a fearless, smart, and hard-driving public servant—exactly the qualities that Sen. Mitch McConnell (R-KY) and his caucus deplore in Obama appointees. With luck, Perez will be successful in direct proportion to the unprecedented vitriol Republicans hurled in his path. Their efforts to define a “new normal” for appointees—no one need apply who has ever done or said anything the most rabid member of the Tea Party might dislike—should not distract us from the real challenges confronting Perez within the Administration.

The success or failure of Perez's tenure will be decided not by Mitch McConnell, but by a White House whose political operatives have squashed every significant regulatory initiative suggested by the Occupational Safety and Health Administration’s (OSHA) star-crossed leader, David Michaels. In fact, so relentless has this punishing counter-campaign been that there now exists the very real possibility that President Barack Obama, who probably owes at least his first-term victory to the hard work of organized labor, will finish eight years in office having promulgated only two rules to address grave threats to worker safety and health. One is the revised Hazard Communication Standard, requiring employers to change the way they notify workers about toxic chemicals in the workplace. The other changed the rules covering use of cranes and derricks in the construction industry, focusing mostly on training, certification, and inspection requirements. The “HazCom” revisions were largely driven by changes to international standards and the cranes and derricks rule was developed through a negotiated rulemaking process during the George W. Bush Administration.  So, other than whatever gains the agency may have achieved through enforcement, its rulemaking agenda has almost run off the tracks, and it will take a herculean effort to get it back on.

Michaels explains OSHA’s difficulties in regulating health threats by pointing to factors outside his and the White House’s control. The law (the Occupational Safety and Health Act) is bad; the process (rulemaking under the Administrative Procedure Act) is inordinately complicated. And he's right, of course. Both problems have long afflicted OSHA, as he knew only too well before he took the job because he was one of the agency’s most astute watchdogs. Worse, Michaels must confront these high hurdles with an unworkably small rulemaking staff.

But just like every other important problem on the President’s plate, his staff’s complaints about tough odds will not help his historic legacy, and instead will look like bureaucratic defensiveness. Working people need and deserve public servants who will move those mountains and get something done. If the Obama’s people won’t or don’t do that, he’ll go down as a President who did not care enough about worker health and safety to push past obstacles his own political advisers participated in creating.  

Because of lax rules, workers handling n-propyl-bromide, an extraordinarily toxic chemical used in furniture glue that causes severe nerve damage after short exposures, retire on disability in their forties. Construction workers get lung cancer from inhaled silica (sand); workers are immolated in combustible dust explosions. Workers who handle beryllium and diacetyl have waited for years for OSHA to set more stringent limits on exposures that cause life-threatening lung and other diseases. In fact, with respect to beryllium, Michaels wrote in 2007, when he was an epidemiologist teaching at George Washington University’s School of Public Health: “Today, the federal government finds itself in the embarrassing position of explaining why the employees of [the Department of Energy] and its contractors are now covered by a workplace rule ten times more protective than the one covering workers in the private sector.” Six years later, the agency has yet to propose a beryllium standard, although it promises to do so in October.

The same paralysis afflicts the other rulemakings in OSHA’s official regulatory agenda: the silica standard has been stuck at the White House Office of Information and Regulatory Affairs (OIRA) since February 2011; OSHA now says it will be out in July of this year which, as of this writing, leaves eight business days for that promise to be kept. Michaels’ top regulatory priority—a rule to require employers to have procedures that find and fix hazardous conditions at individual facilities—is still waiting on the convening of a panel of small business representatives, and has been stuck in that state through most of the Administration’s first term. The agency does not expect to publish a proposed rule until January 2014, with only two years—really, discounting for the inevitable regulatory stall in the run-up to the next presidential election, 18 months—to issue a final enforceable standard. That’s not very much time.

Left entirely out of the official regulatory agenda are rules on (1) infectious diseases (promised by Michaels soon after he was confirmed); (2) safe patient handling to avoid ergonomic injury in the health care industry; and (3) standards for heat stress in outdoor occupations, especially agriculture—a seeming no-brainer as climate change produces temperatures in the range of 110° degrees in southern fields. Two weeks ago a postal worker in Massachusetts collapsed and died after trudging around in high temperatures; imagine what is going on with migrant workers in Texas.

Michaels and Perez have undoubtedly talked about these problems, and we hope they have some solid strategies in mind to resolve them. Business-as-usual, though, simply is not going to cut it. They can’t just make sure the routine paperwork is shuffled at the ordinary pace across someone’s desk. Unless they become as relentless as Mitch McConnell, his caucus, and regulated industries, they’ll look back in October 2016 with nothing to show the history books, as workers continue to die or get severely injured unnecessarily. Nothing should be a higher priority for either of them than rescuing their proposals from the White House dungeon, getting them published immediately, running a quick and efficient process for digesting public comments and considering any changes to the rule, and making final their priority rules well before national presidential politics makes everyone inside-the-Beltway even crazier than they are already.   


Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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