Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

Practitioner Insights: Taking a Carrot or Stick Approach to Worker Safety

July 19, 2017, 2:45 PM

The debate over the relative advantages of Occupational Safety and Health Administration enforcement versus compliance assistance is one of the most enduring and misunderstood discussions in the occupational health and safety community.

Both Republicans and Democrats have traditionally supported enforcement and compliance assistance, although the balance shifts from administration to administration. The Bush administration, for example, significantly increased participation in OSHA’s Voluntary Protection Programs (VPP), while the Obama administration put more emphasis on making its enforcement program more effective.

For those who aren’t familiar with this debate, compliance assistance is simply the provision of health and safety training, information, and encouragement to employers and workers. OSHA has three compliance assistance budget items, the first of which is federal compliance assistance, which funds Compliance Assistance Specialists in many field offices. The CAS position was created during the Clinton administration and specialists provide presentations at industry conferences, prepare local training materials, and conduct VPP approvals and re-approvals. The federal compliance assistance budget also funds all the fact sheets and outreach documents on OSHA’s website; supports the OSHA Training Institute, which provides training for OSHA inspectors and other experts; and backs the VPP and Alliance programs.

The second budget item, OSHA’s state compliance assistance, provides 90 percent of the funding going to states to run their Onsite Consultation Programs for small- and medium-size employers. Finally, OSHA’s $11 million Susan Harwood Worker Training Grant Program gives grants to nonprofit organizations to provide hands-on training for vulnerable and high-risk workers. The Trump administration is proposing to eliminate that program in its fiscal 2018 budget plan.

While VPP is a relatively small part of the agency’s compliance assistance program, it tends to be the most visible component to the outside world, and a specific item that Secretary of Labor Alexander Acosta refers to during appropriations hearings when questioned about compliance assistance.

Despite the administration’s professed emphasis on compliance assistance, President Donald Trump’s fiscal 2018 budget actually cuts the program. While $4 million would be added to the federal compliance assistance budget, primarily to add Compliance Assistance Specialists and indirectly to boost VPP, Trump’s proposal then turns around and takes away almost $11 million of compliance assistance funding that supports the Harwood program. OSHA would end up with $7 million less for compliance assistance than the current budget provides.

Eliminating the Harwood program would deny the compliance assistance program to workers who need the most assistance. VPP and most of the work of the Compliance Assistance Specialists are focused on employers that have already decided to boost their health and safety efforts, and therefore request compliance assistance. The Harwood program, on the other hand, is one of the few OSHA programs that focuses on workers—and specifically high-risk, vulnerable employees who either work for employers who do not emphasize safety and health on the job, or for small employers who see the value of working closely with a better trained workforce.

And despite the Trump administration’s purported interest in small business, the OSHA Consultation budget would remain flat in fiscal 2018, which would result in fewer on-site consultations.

OSHA’s enforcement budget also is projected to remain flat for the sixth year in a row, which translates into a cut after inflation and other built-in costs are factored in. The agency’s enforcement staff could lose 143 inspectors between fiscal 2016 and fiscal 2018—a more than 10 percent cut.

Compliance Assistance vs. Enforcement

Setting standards and enforcing those standards was the main approach by which the creators of OSHA intended the agency to prevent workplace injuries, illness and death. In addition, the law authorizes OSHA to conduct training and outreach—the core of its compliance assistance programs.

While providing information about health and safety hazards, how to comply with OSHA standards, workers’ rights, and employer obligations under the law are important agency functions, these functions are not unique to OSHA. Employers—especially large employers—have many other ways to get training and information. They can employ full-time safety and health staff or hire consultants. For small- and medium-size employers that may not have the ability to employ full-time safety and health staff or hire consultants, OSHA funds an on-site consultation program in every state to provide free assistance.

Unlike compliance assistance, the authority to set mandatory standards and enforce them by penalizing employers that endanger workers are unique functions that only OSHA can perform.

So, what’s more effective? It’s clear that enforcement and compliance assistance are both needed and they both work together to improve safety and health.

Research provides convincing evidence that OSHA enforcement prevents injuries without costing jobs. In 2012, Science published a peer-reviewed study by the Business Schools of the University of California and Harvard University. This study looked at the impact of random OSHA inspections in California and found that inspections reduce injury rates, while saving employers billions of dollars through reduced workers’ compensation costs, with no detectable job loss. This study was accompanied by others in Washington and Pennsylvania, which showed similar results.

There have been few studies on the effects of compliance assistance. One Washington study on the consultation program found that consultation visits appeared to reduce injuries, but not as many as enforcement inspections with a penalty. Also, those companies that choose to take advantage of the consultation program have already recognized the importance of safety and health.

The Debate

So why are we having this debate? Two reasons.

First, budget resources are limited and choices must be made. Second, business don’t like to be cited and fined, and business associations generally support an ideological agenda opposing any kind of regulation or strong enforcement of those regulations. Unfortunately, the debate over the relative virtues of compliance assistance over enforcement is no longer a civilized discussion. The discussion has been weaponized by Republican lawmakers and the business community as part of their fight against regulation, and specifically their goal of weakening OSHA enforcement and standard-setting. Those campaigns are based on a number of myths, which we will discuss below.

Myth: Compliance Assistance Is About Prevention; Enforcement About Reaction

At his recent Senate Appropriations hearing, Acosta praised compliance assistance as a preventive strategy: “Compliance assistance, at the end of the day, I believe can bring about sometimes greater compliance,” he said. “As a U.S. attorney, I would talk to Chambers and said we can prosecute cases, but preventing wrong doing in the first place is more successful.”

OSHA is a small agency that can inspect only a tiny number of workplaces each year Enforcement, in addition to citing employers who have broken the law, also has a deterrent function beyond just the employers who have been inspected—encouraging employers who don’t want to be cited to address health and safety issues before OSHA arrives. Enforcement actions affect employers in the same industry and geographic area, encouraging them to promote safety and avoid enforcement. Also, OSHA does not just enforce in reaction to an incident; the vast majority of OSHA enforcement actions occur before there is an injury or fatality. In other words, they are preventive, not reactive.

Myth: Compliance Assistance Is About Cooperation; Enforcement About Confrontation

OSHA fines are small and many employers see them as inexpensive learning experiences. As former Assistant Secretary David Michaels wrote, “Some employers welcome OSHA as an extra set of eyes, getting a professional safety or industrial hygiene consultation for a cost far less than a professional consultant would charge.”

Every OSHA emphasis program begins with months of compliance assistance—written materials, on-site presentations, and media outreach—prior to commencing enforcement. The hope is that with warning enforcement likely to increase, employers will actively seek assistance in order to come into compliance. Emphasis programs, which are enforcement strategies implemented at the local level, have been successful in encouraging industries to take workplace safety and health more seriously.

Prompted by a dairy emphasis program in Idaho, for example, the Idaho Dairymen’s Association decided last year to add a full-time position to administer worker safety training.

Myth: Obama Administration Was All Enforcement, Instead of Compliance Assistance

A 2016 article by attorneys with law firm Keller and Heckman asserted that OSHA under the Obama administration had rejected the “cooperative approach” to safety and health.

“Since the beginning of the current administration, OSHA has expanded on a more punitive, enforcement-based approach in carrying out its mandate. In so doing, the Trump administration has largely abandoned the proactive initiatives the Bush administration instituted, which were meant to help employers improve workplace safety and compliance with OSHA regulations,” he said.

In the fiscal 2008 budget, the last full budget of the Bush administration, compliance assistance comprised 24 percent of the OSHA budget, while enforcement comprised 37 percent. In the 2015 budget, the last budget of the Obama administration, compliance assistance still comprised 25 percent of the budget and enforcement bumped up to only 38 percent.

The new administration is taking credit for moving “back” to a more cooperative approach—an approach that was never abandoned—as can be seen in another law firm article praising OSHA’s recent Safe and Sound campaign.

“From our view, it’s interesting for OSHA to take a more cooperative approach to worker safety and health issues. Whether this news release and associated webpages signal a change in the overall approach OSHA will take under the Trump administration is yet to be seen,” the law firm authors wrote. “But this is not the tone we have seen from OSHA in the last several years.”

The Safe and Sound Campaign, as well as the health and safety program guidance on which it is based, were developed at the end of the Obama administration and implemented at the beginning of the Trump administration.

The Obama administration worked to strengthen compliance assistance by providing health and safety information not just to employers, but to workers—especially vulnerable workers like day laborers and workers whose first language is not English. In 2010, for example, OSHA held a National Action Summit for Latino Worker Health and Safety that was repeated frequently on the regional level.

The Obama-era OSHA also developed a nationwide compliance assistance campaign to protect workers from heat exposure, including a very popular cellphone app, and a campaign to prevent falls in construction.

Myth: Obama Administration Attempted to Weaken VPP Program

Obama’s OSHA inherited a Voluntary Protection Program that was in crisis: It tripled in size between 2000 and 2011. The Bush administration grew VPP to a point where OSHA no longer had the resources to maintain the integrity of the program, as the Government Accountability Office warned in 2004. There was an enormous backlog of VPP re-approval applications and OSHA was failing to terminate VPP companies that had experienced fatalities and willful citations.

Given budget limitations, the Obama administration had to choose between continuing to expand the program or investing in rebuilding the program’s integrity.

The Obama administration focused on integrity over growth, calculating that a larger program wasn’t worth much if no one believed that it was living up to its goal of recognizing the best companies.

Myth: VPP Is a More Effective Alternative to Enforcement

In responding to a question about why OSHA’s budget proposal was emphasizing compliance assistance over enforcement, Acosta responded that programs, “like the VPP program and others that work with particular companies to foster compliance assistance may—not may, but the evidence shows do—produce better safety outcomes. The budget will fund the VPP program that has in fact been shown to be very successful working with companies and saying, look, these are the steps you can take so that you can provide a safe workplace.”

There is no proof that Voluntary Protection Programs produce better outcomes than enforcement, as the issue has never been studied. While VPP participants clearly have better safety and health records than the average company, they already had a better safety record before going into a VPP. The statement that VPP participants have better safety records than non-participants mixes up cause and effect. These companies are in VPP because of their superior safety records. They don’t have superior safety records because of VPP.

And while it is true that OSHA works well with VPP companies, is it better for OSHA to dedicate its scarce resources to companies that already want to focus more on enforcement and worker outreach, or to companies that are deliberately cutting corners and endangering workers?

Myth: Small Businesses Need Warnings, Not Enforcement

At Acosta’s hearing, Sen. James Lankford (R-Okla.) channeled some familiar small business complaints: “If we miss something, come tell us we missed something, but don’t come in with a fine book immediately, come in with a warning. Especially for small business, if they miss something they don’t have an attorney on staff, they don’t have a compliance person on staff, they run their business. Come in to help people, not just to fine.”

Small businesses have special needs, but small-business employees have the same rights as workers in large companies to a safe workplace and to come home in one piece at the end of the day. Both Democratic and Republican administrations have recognized the financial limitations of small businesses. Accordingly, OSHA has an early-warning system for small employers: its Onsite Consultation Program.

If a small employer is worried about an OSHA inspector descending on a worksite and issuing a fine for hazards the company was not aware of, that employer has a right to a free consultation, unrelated to enforcement, before the OSHA inspector arrives.

What Does the Future Hold?

Trump’s OSHA budget and Acosta’s hearing remarks displayed this administration’s bias toward employer-centered compliance assistance and away from worker-centered compliance assistance and enforcement.

Earlier this month, OSHA announced a stakeholder meeting to collect suggestions on how to strengthenVoluntary Protection Programs. One law firm stated that this meeting perhaps signaled that “OSHA may be turning toward cooperative and compliance assistance programs under the Trump administration.”

There is nothing wrong with OSHA seeking advice on how to strengthen VPP, as it needs help if it’s to survive with any integrity. But why isn’t OSHA also holding a meeting on how to strengthen enforcement? Or how to strengthen and streamline standard development?

The Obama administration, in contrast, requested comments on strengthening all of its programs. One of Michaels’ first actions when he assumed the helm of OSHA was to schedule a daylong OSHA Listens meeting, open to everyone, to request input on how the agency could strengthen all of its programs, not just his selected favorites.

Studying and discussing the relative virtues and effectiveness of compliance assistance and enforcement can be a useful activity. Everyone would agree that the discussion would benefit from more research on the subject. But distorting the discussion with myths and a war on regulation is not useful. Those of us truly interested in worker safety and health should hope for better.

To read more articles log in.

Learn more about a Bloomberg Law subscription