It’s time to follow a new playbook, according to OSHA experts
By Dave Johnson, ISHN Editor-at-large
iden eyes stricter OSHA enforcement of workplaces.”
“Businesses brace for mandatory workplace rules under Biden.”
“OSHA to look very different under a Biden administration.”
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A Google search in December 2020 turned up these headlines regarding the incoming administration’s plans for the Occupational Safety and Health Administration (OSHA).
This much is certain, based on public statements President-elect Joseph Biden made during his campaign, and since his election: The incoming president wants OSHA to issue an emergency temporary standard (ETS) for COVID-19 protections in the workplace, and he wants to double the number of federal OSHA inspectors.
Four years of the agency operating without a top leader — the assistant secretary for occupational safety and health — and with at least eight top agency positions filled on a temporary basis, morale among the 2,100 OSHA employees has sunk to the worse levels ever recalled, according to sources interviewed by ISHN for this exclusive article.
Loren Sweatt, with a degree in political science and an MBA, and having served as a policy advisor in Congress, has directed the agency with the title of principle deputy assistant. OSHA’s directors of standards, technical support, enforcement, training and education, and whistleblower protections are all serving on an acting/interim basis. Three of the ten OSHA regional administers overseeing field operations are temporary/acting RAs.
The agency’s number of inspectors was 752 in 2019, the lowest level in 50 years. The inspection force peaked in 1980 at 1,469. The number of inspections conducted in fiscal year 2020 dropped 35 percent to 21,598, due to COVID-19 restrictions in many workplaces. Enforcement efforts at the federal and state level have been swamped by more than 40,000 COVID-19-related complaints. And federal OSHA repeatedly has been blasted by the national media for not conducting enough COVID-19-related inspections (203), issuing insufficient penalties ($3,148,452 in proposed fines), and failing to issue a pandemic ETS.
Limited resources are always a hindrance for OSHA. The agency’s budget in fiscal 2021 is $576.8 million, compared to the Environmental Protection Agency’s budget of $6.658 billion (down $2.4 billion from 2019). EPA has approximately 12,600 full-time employees.
Labor’s new leverage
None of this sits well with organized labor and occupational health and safety activists. Biden was endorsed for the presidency by more than 40 unions. His transition team for the Labor Department includes four union representatives; the director of Cal/OSHA, one of the most aggressive state OSHA plans; a staffer from Senator Bernie Sanders’ office; and two officials with the National Employment Law Project, one of the most vocal critics of OSHA during the Trump administration years.
Most OSHA-watchers predict Biden will appoint a safety and health professional from organized labor to be the next OSHA chief. Only once has the agency been led by a permanent administrator coming directly from the union ranks, John Stender of the Boilermakers Union from 1973 to 1975. But labor has wielded major influence at OSHA when Democrats occupy the White House. David Michaels, OSHA’s chief during the entire Obama era, was an academic whose top two lieutenants, Jordan Barab and Debbie Berkowitz, both held previous positions in organized labor. Behind the scenes, the AFL-CIO was instrumental in pushing the Clinton administration to issue the ill-fated ergonomics standard, overturned soon after George W. Bush took office.
A top candidate
Jim Frederick, recently retired as assistant director of health, safety and environment for the United Steelworkers Union, a certified industrial hygienist, and most recently a part-time health and safety consultant, has been mentioned by numerous sources as a top candidate for the OSHA chief job. He also could be quickly appointed to the agency’s number two position and be the acting chief probably for most of 2021 until a permanent appointee is confirmed. (After President Obama took office in January, 2009, Dr. Michaels was not confirmed to head OSHA until December, 2009.) OSHA’s number two can be tapped without Senate confirmation and would have the authority to issue the COVID-19 ETS.
Berkowitz, Barab and even Dr. Michaels for a second go-round have been mentioned in the press as possibilities for the top OSHA slot, but sources have told ISHN none are interested.
Berkowitz and Barab are on record wanting to OSHA sharpen its teeth, get tougher on enforcement, and get back to work on standards. Dr. Michaels now talks in the new language of safety and health. In a recent video he says the agency needs to promote human and organizational performance (HOP) and help industry understand HOP principles such as human error is inevitable and systems must be designed knowing that “we all make errors all the time.” The former OSHA boss also says industry’s focus should be on risk reduction, identifying critical tasks and hazards every day, and realizing “safety culture and operational culture are not separate; a mindset change is needed to think safe operational culture.” This must be OSHA’s focus as well, for industry will follow OSHA’s lead, save for the minority of organizations with safety and health systems far beyond anything the agency requires.
Typical tension surrounding OSHA
The coming months, and perhaps years, will see tension between activists who want an aggressive “policing” OSHA and moderates who see benefits in a less adversarial, more collaborative approach that values outreach to all stakeholders, partnerships, and expert advisory boards and task forces.
There is across-the-board agreement in one area: the agency needs to modernize. Dr. Michaels and Barab wrote a paper in the April, 2020, issue of the American Journal of Public Health stating, “now is the time to launch an initiative to reimagine OSHA… the weaknesses now facing OSHA are significant.” As evidence they cite: A broken standards-setting process. Monetary penalties that are too small and criminal sanctions too weak to deter employers. A sizeable number of OSHA’s safety standards are antiquated, as are hundreds of chemical exposure limits. Dynamic safety and health management systems must be endorsed and encouraged. And the scourge of fatalities and serious injuries that frustrate even the best safety and health programs will not be eliminated by OSHA compliance alone.
Internal renovations
Four former high-ranking OSHA officials agreed when interviewed by ISHN that the agency needs to do much internal reconstruction. Replenish a senior leadership roster depleted by retirements. Upgrade professional development for field personnel. Require professional certifications. Set goals – not too many – with measurable results. Deliver more rigorous training courses for field compliance staff. Develop and widely share with office and field staff a vision for the next four years.
What should that vision be? Jim Frederick echoes the sentiments of many sources interviewed by ISHN when he made these points to ISHN:
• OSHA needs to emphasize the “health” in “safety and health;”
• The COVID-19 ETS is necessary and important, and should be followed by reviving rulemaking on an infectious diseases prevention standard;
• Focus on reducing fatalities outside the regulatory process;
• Promote management standards such as ANSI/ASSP Z10 and ISO 45001 as “really good roadmaps” to excellence;
• Put less emphasis on chasing “the numbers” – lagging indicators of performance such as recordable incidents – and put more focus on risks, not hazards; focus on severity and probability;
• Permissible exposures limits (PELs) are “embarrassing” and need to be updated, perhaps using information from the Toxic Substances Control Act (TSCA);
• Value the agency’s career staff, don’t degrade it; “OSHA is about the people who do the work, and they need to be supported and resourced to be effective;”
• Embrace expert advisors such as members of the National Advisory Committee on Occupational Safety and Health (NACOSH);
• Don’t bite off more than the agency can chew; don’t have too many priorities; take the long view, 12 to 16 years out;
• Bring inside the OSHA tent stakeholders from labor and go beyond labor to include small, medium and large corporations and health and safety associations and their members.
The challenges of change
Changing, and successfully reinventing, Washington bureaucracies even as small as OSHA is a rarity.
Internally there is institutional inertia brought on by decades of underfunding, lack of will, revolving door leadership, and insularity.
Externally there is a clash of ideas. Labor and safety advocacy groups argue OSHA is first and foremost an enforcer. More egregious violators need to be jailed. Shame, blame and make an example of businesses willfully violating regulations. Standards on workplace violence and heat stress are needed. Industry groups believe OSHA needs to give businesses a break, stop issuing ambiguous, performance-oriented standards. Develop industry-specific guidance — not mandatory rules. Emphasize collaboration, not confrontation. Listen carefully to the employer community — what one attorney who represents businesses called “the repository of all real-life safety and health knowledge and experience.”
This clash of ideas has encircled and restricted OSHA throughout its 50-year history. Will fresh leadership at the agency and almost universal agreement that OSHA must change with the times overcome entrenched internal and external attitudes and beliefs? The coming years will tell.
JANUARY 2021
VOL. 55 NO. 1