June 2003 - VOLUME 24 - NUMBER 6
An Interview with Margaret Seminario
Margaret Seminario is the Director of the Occupational Safety & Health for the AFL-CIO, where she has been since 1977.
|Last year, there were more than 5,000 workers who died from traumatic injuries, and an estimated 50,000 to 60,000 who died from occupational diseases. The number of reported workplace injuries was over 6 million, and that number is clearly understated.||
Multinational Monitor: How many workplace deaths and injuries occur
annually in the United States?
MM: How do those numbers compare to the numbers at the time at
the founding of OSHA?
There has been a great deal of success, but problems remain quite serious and extensive.
MM: What kind of enforcement tools does OSHA have at its disposal?
Federal OSHA is responsible for safety and health enforcement in over half the states. Federal OSHA has an inspection force of less than 1,000 inspectors, and there are probably 4 million workplaces in the states where federal OSHA has responsibility. The states assume responsibility in the other states and they have about an equal number of inspectors.
We've got 2,000 job safety inspectors in the country responsible for overseeing and enforcing the safety and health laws in more than 6 million workplaces.
OSHA actually has fewer staff today than it did in 1980. The workforce and the number of workplaces has grown, but the agency's resources have not grown.
As far as the law itself, the law is pretty much today what it was in 1970. The agency has available the same tools it had in 1970, which is essentially the ability to inspect, to cite employers for violations, propose penalties and seek to enforce its orders.
But there are many aspects of the law that are quite weak. The agency has no ability to require an immediate abatement of hazards while a legal contest is pending. So hazards can go uncorrected for years while litigation is pending. They have the right to shut down dangerous jobs, but they have to go to court to get an order; they don't have an immediate shut-down authority, which would be helpful in dealing with imminent danger situations.
And the criminal penalties under OSHA are very, very weak. The law provides for criminal penalties only in cases where a willful violation has resulted in the death of a worker. Those provisions have been used on very few occasions, so it really does not provide a strong hammer. The level of criminal penalties in the OSH [Occupational Safety and Health] Act basically make the events a misdemeanor, which means that these are not high priority cases for the Justice Department to take up and prosecute. Senator Corzine has introduced a bill to make criminal violations of OSHA a felony, which is a step in the right direction, but even that bill would not expand the instances in which OSHA may use criminal penalties to enforce the law.
MM: How frequently is the criminal prosecutorial authority actually
MM: And on the civil side, what's the penalty structure?
MM: What is a willful violation?
For fiscal year 2002, the federal OSHA only issued 392 willful violations, down from 600 in fiscal year 1999. The average penalty for a willful violation was $27,000, where the maximum would be $70,000.
What we've seen is that while the inspection levels have been maintained by the Bush administration, the level of enforcement and the aggressiveness of enforcement has decreased. The number of willful violations, the number of repeat citations, and then the penalties that are associated with OSHA violations are all down.
MM: So that's $27,000 for knowingly risking a worker's life?
MM: What is OSHA's budget, and how has it been trending?
Every year since the Bush administration has taken office, they have proposed to cut OSHA's budget, particularly with regard to standards and enforcement. And for the last several years, the Congress has rejected these proposals and instead has moved to fund OSHA at a level that would maintain or slightly enhance its program.
MM: What is the National Institute on Safety and Health (NIOSH)
MM: Probably the most prominent controversy at OSHA over the last
15 or 20 years has been over ergonomics and repetitive stress injuries.
What is the status of regulation in this area?
Muscular and skeletal disorders are the biggest source of workplace injuries. They account for one third of all serious workplace injuries.
For a number of years, OSHA was in the process of developing a rule. When the Republicans took control in 1995, stopping or killing the ergonomics standard became a top priority of their ideological agenda to stop major regulations. A five-year struggle ensued, with the Clinton administration trying to move forward with the rule, and the Republicans in Congress and industry trying to stop it.
Ultimately, a rule was proposed in November 1999, and a final rule was issued in November of 2000. When President Bush took office, one of the first actions of the Congress during his administration was to use the Regulatory Review Act, which had never been used before, to overturn the rule. That was an action that the Bush administration supported, and indeed signing the legislation overturning the ergonomics standard was the first major legislative act of President Bush.
Now there is no regulation. The Bush administration has refused to move forward any new regulation. Instead, it has put forward a voluntary approach based on guidelines and outreach. They've said they will enforce some of the general duty clause [which imposes a general duty on employers to protect workers from hazards likely to cause death or serious harm], but in two years time we've seen poor enforcement action under the general duty clause for ergonomics.
Essentially what has happened is that they have refused to address in any serious way the biggest job safety and health problem in the country.
MM: What was the essence of the regulation that was overturned?
That essentially was what that rule was about -- identifying hazardous conditions, and fixing them to reduce the risk of injury. It didn't require eliminating the hazard, it required reducing the hazards. It required employers that had widespread problems to actually have a systemic approach to doing this. It essentially mirrored the approaches that employers who have addressed ergonomic problems have taken, and put this forward in the form of a mandatory requirement.
MM: What were the projected health benefits for that kind of program?
This is a huge problem economically as well. The cost of these injuries are massive. These injuries probably account for half of all the worker's compensation costs. They are soft tissue injuries, the type of injuries that take time for people to recover from -- some people never recover -- so people lose a lot of time from the job. An average case of carpal tunnel syndrome results in 27 days off the job, for example.
MM: So this really was a strong counter to the employer argument
that the rule would have been too expensive?
MM: The story has been similar with other workplace safety and
MM: The tuberculosis rule is one of those.
It had gone through the entire rule-making process. The Bush administration reopened the record when it came into office to take more comments, and now has made a decision that it is going to withdraw the rule and basically wipe out 10 years of work and stop any legal protections from being put into place.
This is at a time when, obviously, there are very significant and real concerns about infectious diseases, particularly in a healthcare setting in the form of SARS, bio-terrorist threats, etc. The kind of precaution and control measures in the tuberculosis standard are exactly the same ones that you would utilize for protection of workers against any airborne infectious agent. But the administration has apparently decided that no mandatory protections are needed.
MM: Another one of the contested rules involves personal protective
This has been OSHA's policy for a long time, but it was never codified. There was an employer challenge and the OSHA review commission held that while it might be a policy, it needed to be established as a matter of regulation. So the agency was attempting to do what the review commission had suggested -- not change its policy, but merely codify it in a regulation.
That's gone through the whole process -- there was a hearing, there was no objection to it. But this administration has refused to finalize it.
Most employers do pay for equipment, but not all do. The workers who are most at risk are those who are low-wage, not unionized, who don't really have anyone to speak on their behalf, who are most likely to be exploited by their employers. This is a rule that is particularly needed for workers who are the most at risk of injury or death, in many cases immigrant or Hispanic workers.
MM: What about the record-keeping rule?
If you change the definition and the injuries don't have to be recorded, it makes it look like the problem is being taken care of when it's not.
MM: The rule-making process allows for unions or others to petition
for new rules. You recently submitted a petition to OSHA on chemical safety?
This is an issue that the unions raised with OSHA back in 1995. OSHA had promised it would address it through rulemaking. The rule was on the OSHA regulatory agenda and taken off by the Bush administration a year or so ago.
It's also an area that the independent Chemical Safety Board looked at in some detail. Six months ago, they came out with a recommendation that OSHA as well as EPA [the Environmental Protection Agency] update and tighten their chemical process safety standards to include reactive chemicals.
MM: What's the obligation to respond to the petition?
MM: How long was the delay in the hexavalent chromium case?
MM: Given an example like that, to what extent is the Bush administration
really just continuing the general disregard for workers' safety and health
that extends across both parties?
But you also have to remember that during the Clinton Administration, unfortunately, as of January 1995 you had a rabid Republican Congress which was challenging the agency on everything it did. You had an assault on the agency by the right wing and by the employers to try to shut down the agency and stop them from doing anything.
On regulatory matters, every year there were riders, legislative provisions prohibiting OSHA from taking action on ergonomics, tuberculosis and other regulations.
On top of that, there were additional requirements being imposed in the regulatory analysis area -- requiring cost analysis, small business analysis and others before regulations could be issued -- so that the regulatory process became extremely hard and difficult.
I think that there is definitely a difference in terms of the agenda and desire to move forward on regulation. What we've got now is an administration that has no commitment to doing any new regulation and a process that makes it quite difficult to get anything done.
MM: You have highlighted the particular problems of immigrant workers.
What special health and safety problems do they face and why?
You might expect the increases in the numbers Hispanic workers injured, because they represent a larger proportion of the workforce, but what we see is disproportional and very significant increases in the rates of fatalities and injuries.
The problems are particularly significant in certain industries, such as construction and agriculture. These are higher risk industries. The immigrant workers in these industries tend to be among the workers who aren't organized, so they don't necessarily have legal protections, and may be afraid of raising safety and health issues. Many of the fatalities are occurring in smaller workplaces. Smaller employers often don't provide the kinds of protections that are needed.
This is an area that is definitely being addressed in many union organizing campaigns. In the construction industry and agriculture, many of these health and safety concerns are ones that are first and foremost in workers' minds.
This is an area where the interventions that are needed are ones that have to be targeted to the workers at risk in the industries where they work, and in the communities where they work rather than some broad general approaches. We need some real action by the government to be clear it's going to take these matters seriously and get out there and not just outreach to immigrant workers, but enforce the anti-discrimination provisions of OSHA in a very aggressive way and a very public way.
The Bush administration has refused to move forward any new regulation [for ergonomics]. Instead, it has put forward a voluntary approach based on guidelines and outreach. ... They have refused to address in any serious way the biggest job safety and health problem in the country.
|The agency has no ability to require an immediate abatement of hazards while a legal contest is pending. So hazards can go uncorrected for years while litigation is pending.|
|The kind of precaution and control measures in the tuberculosis standard are exactly the same ones that you would utilize for protection of workers against any airborne infectious agent. But the administration has apparently decided that no mandatory protections are needed.||Their arguments in the political arena are totally contradicted by the experience in the real world of the workplace. Employers that have taken steps to address ergonomic hazards and musculoskeletal disorders generally see very good results.|