July 30, 2009

Reviving OSHA: The New Administrator's Big Challenge

On Tuesday, the White House announced the appointment of Dr. David Michaels to head the Occupational Safety and Health Administration (OSHA). An epidemiologist and a professor at George Washington University’s School of Public Health and Health Services, Michaels will bring substantial expertise and experience to the job. Besides being an active health research – he studies the health effects of occupational exposure to toxic chemicals – he has also written impressively on science and regulatory policy. His book, Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health, offers extensive evidence of how regulatory entities spend millions of dollars attempting to dismantle public health protections using the playbook that originated with the tobacco industry’s efforts to deny the risks of smoking. He is also an experienced public health administrator, having served as the Assistant Secretary of Energy for Environment, Safety and Health in the Clinton Administration.

The appointment is good news because OSHA can use all of the help it can get. In 1993, Tom McGarity and I published Workers at Risk: The Failed Promise of the Occupational Safety and Health Administration, which explained how OSHA has fallen short of its statutory responsibility to protect American workers. I wish that I could say that the situation has improved since then, but, if anything, OSHA is in worse shape today than in the early 1990s.

Workplace injuries and fatalities have declined since OSHA has been in business, but the rate of decline has leveled off and the absolute number of injuries and fatalities remains high. Consider, for example, that in 2005, employers paid $48.3 billion in “direct costs” for workplace injuries -- that is, payments for medical expenses and lost wages -- according to the Liberty Mutual Insurance Company, the nation’s largest workers' compensation insurer. This number, of course, does not measure the additional havoc wrought on individuals and their families when a worker is seriously injured or killed in a workplace accident.

American workplaces are dangerous for a number of reasons, including too few OSHA inspectors and a statute that authorizes only small penalties even for more egregious violations. For example, penalties are capped at $70,000 per incident even for “willful violations,” which involve situations where an employer demonstrates “plain indifference to the law.” Plus, OSHA has been way too willing to cut deals and let employers off the hook. The average penalty for enforcement cases involving fatalities in FY 2007 was just $10,133. That’s right, employers paid an average of $10,000 in fines for an accident in which an OSHA violation led to a workers’ death.

The situation concerning occupational disease is even worse. Many of OSHA’s health regulations are out of date and no longer reflect the latest scientific evidence about the risks to workers, yet OSHA has adopted only two comprehensive health regulations in the last ten years. Overall, the agency has legally enforceable exposure limitations for fewer than 200 of the approximately 3,000 chemicals that the EPA characterizes as “high production volume” (HPV) chemicals because more than a million pounds of the substance are circulated in commerce annually.

Again, there are a number of reasons for this miserable record, including a lack of resources and adverse judicial decisions that have made it more difficult to regulate toxic chemicals, decisions that Congress could and should overrule, but has not.

So, Dr. Michaels has his work cut out for him. OSHA can be made more effective with better management, which Dr. Michaels will provide. But he will have to convince Congress to address OSHA’s problems if real progress is to be made, a project that the administration should make a priority. As always, the employer community will fight such efforts tooth and nail. Meanwhile, America’s workers will continue to suffer.


Some reactions and analysis on the Michaels nomination from others: EHSToday, EHSToday(#2), GoozNews, Effect Measure.

Sidney Shapiro, CPR Member Scholar; Fletcher Chair in Admin Law, Wake Forest University School of Law. Bio.

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