ENZI OPPOSES HOME STATE ON SAFETY

As ranking member of the Senate Health Education Labor and Pensions Committee, Sen. Mike Enzi, R-WY, is one of the nation’s leading conservative voices on matters of occupational safety and health.

Enzi’s voice is so strident that conservative legislative proposals on worker safety in Congress typically emanate from his office. Executive appointments at safety and health agencies like OSHA and the Mine Safety and Health Administration also usually must meet his scrutiny.

Since his election to the Senate in 1997, Enzi, a former businessman, has been a key proponent for giving employers sufficient leeway to keep their workplaces safe rather than overburdening them with enforcement. Enzi has said his first priority is preventing accidents by making people aware of OSHA regulations, not raising fines on employers.

But in an unusual occurrence Enzi is running contrary to others in his conservative home state on how to improve workplace safety, calling into question the fundamental approach on safety he consistently has advocated nationally.

Wyoming has been grappling with rising rates of workplace fatalities over the past decade, and, in direct contravention to Enzi, a state task force is recommending that OSHA penalties on employers be increased to create a stronger deterrent to unsafe workplaces.

Nation's Highest Fatality Rate

Wyoming’s Worker Fatality Prevention Task Force, which was empanelled by Democratic Gov. Dave Freudenthal after a spate of fatalities, said insufficient penalties and the state’s proud, independent culture are major reasons for deteriorating workplace conditions. Wyoming, according to the U.S. Bureau of Labor Statistics, has the damning distinction as having the nation’s worst occupational death rate at 17.1 fatalities per 100,000 workers in 2007 -- four times the national average. Freudenthal termed the fatality rate "just awful."

The task force noted that almost 65 percent of workplace fatalities in Wyoming from 2003 to 2007 were transportation-related involving vehicle crashes on highways – totaling 136 of the 210 fatalities. Another 35 died on work sites from being struck, crushed or caught in equipment. About half of the workers killed during that the period worked either in transportation or oil and gas followed by construction and agriculture, according to the task force.

The group concluded that in almost every recorded workplace fatality it studied, proper safety rules either weren’t in place or weren’t being followed.

Wyoming workplace fatalities did drop from 48 in 2007 to 33 in 2008, according to the National Institute for Occupational Safety and Health, but experts said the overall state workplace death rate still is trending upward.

Opposes Greater Employer Penalties

The Protecting America's Workers Act, signature legislation of the late Sen. Edward Kennedy, D-MA, that was re-introduced in the House in April 2009, would dramatically increase employer penalties for OSHA violations, but Enzi is opposed to the bill. Enzi and Kennedy worked together many years in the HELP Committee with Kennedy as chairman. Enzi's spokeswoman told the Casper, WY Star-Tribune newspaper that Enzi “believes the most helpful thing Congress can do is help small businesses prevent accidents by helping them understand the regulations in the first place, instead of coming in at the end with penalties.”

Enzi’s thinking was predominant during the two terms of President George W. Bush, but one that is misaligned today with OSHA under President Barack Obama. Nationally, OSHA already in 2009 has been much more aggressive in pushing an enforcement agenda. Additionally, now that healthcare reform has passed the Senate, action on the Kennedy bill is likely during 2010.

In stark opposition to Enzi’s position, the Star-Tribune newspaper’s editorial board opined in a column Dec. 18 that “the monetary level of OSHA fines is hardly a deterrent to companies. In November, a member of the Joint Judiciary Committee noted that the state's fines for poaching a moose out of season are much higher than for reckless violation of OSHA rules that result in the death of a worker. That's ridiculous.”

Further, in keeping with the state’s independent nature, the editorial board urged that Wyoming should try to reduce workplace fatalities and other accidents on its own rather than waiting for the federal government to act.

While notably conservative, Enzi nonetheless has been considered a reasoned and pragmatic voice in the Senate. But with some in his own home state questioning whether the “trust-in-the-employer” approach on workplace safety is working -- though some may be Democratic voices -- Enzi may come under increasing pressure to reconsider his long-held views.

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Photo: Sen. Mike Enzi, Casper, WY, Star-Tribune

DOL WEB CASTS GLIMPSE OF FUTURE

The Department of Labor jumped headlong into the future of communications Dec. 7 with an eye-catching series of real-time Web chats outlining its regulatory priorities for 2010. So remarkable was this display of social-media transparency and participation that, in some respects, it overshadowed the actual news of what was contained its full regulatory agenda.

The use of Web chats and other social media devices, such as the department’s employing Twitter, Facebook and You Tube, offers a glimpse of how the government likely will be disseminating news and information to stakeholders and media going forward. As interested parties align to the way the department and staid agencies like OSHA and the Mine Safety and Health Administration want to communicate, the novelty naturally will subside and it will be commonplace.

Labor Secretary Hilda L. Solis opened the programming with a video message outlining regulatory priorities in the various department agencies. That was followed later in the day with the secretary’s own hour-long Web chat. Then acting OSHA administrator Jordan Barab convened another hour-long chat to discuss worker safety regulatory initiatives and receive questions from those on the chat.

Eight Hours of Chats
Altogether, DOL scheduled eight hours of Web chat Q&A sessions over three days on its regulatory agenda. The session with MSHA on mine safety was set for 1:30 p.m. EST on Dec. 8. In addition to live chatting, participants could forward questions in advance via email, and chats are archived for later use.

Both the Solis and Barab chats drew the participation of stakeholders ranging from attorneys, industry representatives, labor-union leaders, citizens and the media. Peg Seminario, AFL-CIO safety and health director, asked Barab a question about OSHA’s peer review of its draft risk assessment on silica exposure in the workplace. Daniel Glucksman of the International Safety Equipment Association asked Solis about new items on the reg agenda. One question to Solis from the press asked whether the secretary supported an airborne infectious diseases standard in the wake of the H1N1 virus. J.J. Keller editor Travis Rhoden asked about a proposed rule on working-walking surfaces. One citizen, who described himself as a deaf American living in San Juan, PR, wanted to know where he could find a federal building in San Juan because he was seeking a federal disabilities and employment program.

While the freshness of such an event itself may have overshadowed the actual news being articulated by Solis and agency heads, Barab on OSHA's behalf did offer important insights on its regulatory timetables for 2010. By law, agencies must publish their regulatory agendas in the Federal Register for public scrutiny, and that was achieved in advance of the event.

Barab Outlines Timelines
Among some of Barab’s key points outlined in his chat were: OSHA is not planning new ergonomics rulemaking despite restoring a column to log musculosketetal injuries on the OSHA 300 log; OSHA expects to issue a final rule on cranes and derricks in construction in July 2010; that OSHA has no immediate plans to pursue a standard on airborne transmissible diseases to combat H1N1 as it is able presently to address issues using existing standards and the Occupational Safety and Health Act’s General Duty Clause; that OSHA expects to begin a peer review and risk assessment for a diacetyl standard in October 2010, and that no date is yet envisioned for a final rule on combustible dust. Additionally, Barab took questions on confined spaces in construction, reactive chemical hazards, recordkeeping, permissible exposure limits, workplace emergency response and preparedness and hearing conservation.

“We encourage you to raise questions, submit views, and otherwise provide input to us on the Department's plans for upcoming regulations,” Barab said in introductory remarks to his chat. “Our main purpose today is to have a dialogue on the overall regulatory priorities reflected in the plan.”

One of the obvious implications of the department’s Web chats is that news and information about agency initiatives are put directly into the hands of stakeholders no matter who they are -- in real-time and without filter.

In the past, when a DOL agency would have news to announce, it would convene a conference call of reporters and others, such as when justifying its new fiscal year budget each February. The reporters would then filter and disseminate the “news” through their prisms, often at odds with the agency’s message.

Going Directly to Stakeholders
This approach of going directly to stakeholders is in line with where communications is moving today, but it also threatens to upset some long-held "apple carts." What it does is eliminate any confusion over what a policymaker or regulator actually is imparting. In the world of occupational safety and health and labor policy, everyone, it seems, is pursuing an agenda – whether labor unions for workers, industry groups for employer clients, non-profit organizations for new members or industry publications for advertising dollars. As more citizens log in directly to mediums like Web chats for information during the social-media age, they will rely less on traditional means of communication dissemination, and that might rub certain organizations the wrong way.

As DOL and OSHA continue to development its new-age communications policies, here is a suggestion that will move the ball forward even more: Why not provide real-time transcripts of key agency meetings, such as advisory committee meetings, forums or public hearings? In those cases, often citizens must wait several weeks for transcripts to be published. While there may be some legal impediments to real-time transcripts, it might be an idea worth pursuing.

More: Department of Labor Web chat page, OSHA regulatory agenda, MSHA regulatory agenda

Photo: Hilda L. Solis (Source: U.S. Department of Labor)

SENATE CONFIRMS MICHAELS TO OSHA

Amid of the fog of debate on healthcare reform, the Senate Dec. 3 approved the nomination of David Michaels to be the next Assistant Secretary of Labor for OSHA.

Michaels, an epidemiologist and interim chair of the Department of Environmental and Occupational Health at the George Washington University’s School of Public Health and Health, was approved by unanimous consent "en bloc" as part of a group of nominees confirmed. Sen. Robert Casey, D-PA, presented the unanimous consent request.

Neither OSHA nor the Department of Labor had yet to acknowledge Michaels' confirmation on their Web sites through Dec. 4, but he likely was sworn in immediately with a public swearing in to follow at an announced time.

Much to the chagrin of opponents, Michaels' nomination failed to muster much opposition in the Senate Health, Education, Labor and Pensions Committee or the full Senate. The HELP Committee did not hold a confirmation hearing and approved Michaels' nomination Nov. 18 on voice vote with two Republican senators, Tom Coburn, OK, and Richard Burr, NC, requesting that had their votes be recorded as “no.” With the committee's ranking member, Sen. Mike Enzi, R-WY, allowing the nomination to proceed that dissipated any real objection in the full Senate.

In many months of talking points seeking to stymie the nomination, opponents decried what they said is Michaels' penchant for applying unproven science to business regulation. Conversely, Michaels is author of "Doubt is Their Product: How Industry's Assault on Science Threatens Your Health," published in 2008 by Oxford University Press.

More: Michaels' confirmation details in Congressional Record, Description of Michaels' book

Photo: David Michaels (Source: George Washington University)

BARAB ATTENTIVE TO WORKPLACE VIOLENCE

Workplace violence has been a worker issue difficult for regulators and policymakers to get their arms around.

Requiring safety glasses in manufacturing and respirators in chemical plants are examples of fairly cut-and-dried solutions to workplace hazards. But workplace violence, despite its obvious impact, crosses many blurred lines – such as when a worker beset by personal troubles brings them into the workplace with often devastating consequences.

‘One of my Priorities’
After what he believes has been inaction at OSHA during the Bush administration, OSHA acting administrator Jordan Barab is promising to elevate the workplace violence as a worker safety issue. Barab, addressing events before an audience of labor union and safety activists in November in Connecticut, called workplace violence “one of my priorities. It's obviously a worker safety issue,” according to a newspaper account.

Add to that, Barab earlier in November addressed an international conference on occupational stress and health in San Juan, PR, saying that “workplace violence and other occupational hazards that threaten workers’ health and safety should be a concern for employers everywhere.” Sponsored by the American Psychological Association, NIOSH, Society for Occupational Health Psychology and University of Puerto Rico, Barab and other OSHA staff participated in presentations examining the global effect of work, stress and health on people in developed and developing countries.

When he wrote his popular “Confined Space,” which examined issues in workplace safety, Barab also expressed his support in several columns that workplace violence to be treated as a safety issue. Now, as the primary enforcer of OHSA regulations, Barab is able to pursue that course within the agency apparatus.

Viewed Often as Crime
Barab’s view often is in conflict with industry, which sees workplace violence in a much different light – primarily as a criminal issue. Incidents such as robberies of convenience stores and taxi drivers, for instance, do have a worker component, but have been viewed more commonly as being in the realm crime.

But because violence that occurs in the workplace draws considerable media attention when incidents happen – such as the October 2009 shooting spree in an Orlando, FL office building allegedly by a fired worker of an engineering firm that killed a worker – policymakers and regulators will need to outline specifically how they will address the issue. Proponents of workplace violence interventions consider, for example, that the killing of 13 soldiers and civilians at the Fort Hood, TX Army installation falls under the category of workplace violence despite it also being labeled a terrorist event.

Further, safety activists in the healthcare industry are shining a light on violence that might occurs against workers in psychiatric hospitals or in home health setting.

Where they may not have had to do so in the past, employers certainly will want to develop policies within their safety and health management systems to addresses violence in the workplace. Few have them now. In addition to establishing protocols on how to address incidents, policies probably also should extend outreach and training directly to workers. Having policies in place may be enough to satisfy OSHA.

More: OSHA workplace violence fact sheet, News Web site on workplace violence

Photo: Jordan Barab (Source: OSHA)

BLACK LUNG HIGH ON MAIN’S AGENDA

In his first meeting with reporters since taking the top job at the Mine Safety and Health Administration in October, Joseph Main outlined several priority safety issues getting his attention.

Main said the agency intends to propose new rules shortly that will target reducing miners’ exposure to respirable coal mine dust – the source of dreaded black lung disease. Proposals likely will mandate miners’ use of new wearable personal dust monitors that measure exposure to coal dust in real-time instead of devices in use today that only record dust levels for later analysis, Main said Nov. 20 in a conference call with reporters.

The new monitors, which Main said he has sampled, will give miners and operators immediate feedback when dust concentrations are unacceptably high. The agency is receiving comment from stakeholders on the devices through a request for information published Oct. 14. Comments are due by Dec.14.

MSHA and NIOSH have been working intensively on certifying new dust monitors since 2006 as per the landmark Mine Improvement And New Emergency Response Act (MINER Act) that year, and MSHA held a public hearing July 8 at its headquarters in Arlington, VA. NIOSH has estimated that more than 10,000 miners have died of black lung -- clinically called pneumoconiosis – over the past decade. The disease, which causes scarring of the lungs and premature death, had decreased dramatically in the United States from 1969 to 1995, but prevalence of black lung cases has more than doubled in recent years, notably among younger underground miners, according to experts.

Looking at other priorities, Main, who served as administrator of United Mine Workers of America’s Occupational Safety and Health Department for 22 years starting in 1982, told reporters MSHA also would step up protocols for mine emergency preparedness, lamenting confusion that has occurred in recent years during disasters. The MINER Act called for enhanced mine emergency response standards.

Main said workforce training and addressing hazards of deep mines in the West also merit his attention.

Main said the industry is in transition as the population of miners has decreased dramatically over about three decades. New miners are coming into the industry amid retirements with scant experience, and these workers need additional training, he said.

On deep mines, such as in Utah where the 2007 Crandall Canyon disaster killed six miners and three rescuers, Main said MSHA will look harder at issues involved with deep mining and make some determinations on safety. Officials have said the weight of the mountain above the Crandall Canyon mine placed too much force on its tunnel structure.

More: MSHA coal dust monitor Request for Information, NIOSH Science Blog on black lung

Photo: Dust Monitor, CDC

SENATE PANEL APPROVES OSHA NOMINEE

The nomination of David Michaels as the next head of OSHA cleared a key hurdle today -- passage out the Senate Health, Education, Labor and Pensions Committee. Michaels now awaits a vote in the full Senate.

The HELP Committee approved the nomination on a voice vote, but two committee Republicans, Sens. Tom Coburn, OK, and Richard Burr, NC, had their votes recorded as “no.” The committee acted on the nomination without the benefit of holding a confirmation hearing, a move panned by both critics and some supporters. But the committee chairman, Sen. Tom Harkin, D-IA, contended that Michaels' views were widely known and committee members had the opportunity to fully vet the nomination and vote as they believed appropriate.

Michaels' nomination has been controversial as a number of conservative and business groups have voiced their opposition in a barrage of talking points over recent weeks. Opponents have decried Michaels, an epidemiologist and interim chair of the Department of Environmental and Occupational Health at the George Washington University’s School of Public Health and Health, as being out of the mainstream for what they said is his zeal in applying unproven science to business regulation.

More: Nov. 18 HELP Committee hearing on Michaels Nomination (vote comes at the end)

OSHA INTERVIEWS DUE ON RECORDKEEPING

A Government Accountability Office report released Nov. 16 is confirming what many occupational safety and health practitioners know -- that underreporting of injuries and illnesses is a serious and perhaps rampant problem.

OSHA accepted the recommendations in the report, including agreeing to the key GAO suggestion that it require its compliance officers to conduct interviews with workers during workplace recordkeeping inspections. This concession, along with the National Emphasis Program on recordkeeping the agency instituted on Oct. 1 that increases internal resources to address the issue, vastly ups the stakes for employers facing compliance.

The report particularly criticized the practice of “disincentives” that it says many employers have adopted to keep down recorded injuries and illnesses. Some healthcare practitioners told the GAO they were pressured by employers to withhold medical treatment so companies could avoid filing injury reports with OSHA.

“Workers may not report a work-related injury or illness because they fear job loss or other disciplinary action, or fear jeopardizing rewards based on having low injury and illness rates,” the GAO said. “Worker interviews are the only source of information used during the audit not provided by the employer.”

OSHA to Explore Incentive Programs
OSHA confirmed to the GAO that the agency does not officially bar incentive programs or practices even if they may affect workers’ decisions to report injuries and illnesses, according to the report. However, an OSHA official said in light of the report that the agency would explore during the recordkeeping NEP the possible impact such programs have on workers' reporting of injuries and illnesses, the GAO said, and cite employers under Occupational Safety and Health Act authority if they discourage inaccurate reporting.

Labor Secretary Hilda L. Solis described many of the problems identified in the report as “quite alarming” and promised strong enforcement action when OSHA finds underreporting.

OSHA told the GAO, which provides audits for Congress, that its previous policy on interviewing workers during recordkeeping checks has been optional for inspectors. In a response from OSHA acting administrator Jordan Barab that is contained in the report, Barab said the agency would move quickly to implement the recommendations. Since OSHA was given a copy of the report several weeks ago before it was released publicly Nov. 16, implementing the recommendations is likely already occurring.

Underreporting of injuries and illnesses has emerged as a top-line safety and health issue and has been the subject recent congressional oversight hearings and reporting. The underlying implication contends that data OSHA collects from employers is vastly inaccurate and misleading – leading to underreporting of workplace injuries and illnesses.

Critics have claimed that many severe injuries never make it into the OSHA recordkeeping system, and many have urged that counting be expanded to include other types of data beyond what OSHA complies from employers on OSHA logs, such as hospital or workers’ compensation records. The U.S. Bureau of Labor Statistics reports annually on data OSHA collects in surveys on work-related injuries and illnesses, but does not verify the accuracy of the data, the GAO said.

Education, Training on Recordkeeping Urged

Among other recommendations, OSHA and the Department of Labor should increase education and training to help employers better understand recordkeeping requirements, the GAO said. Many employers and industry groups have said the system of recordkeeping is confusing and that may contribute to the undercount.

Sen. Patty Murray, D-WA, chair of the Subcommittee on Employment and Workplace Safety of the Health, Education, Labor and Pensions Committee, issued a statement that the GAO report means employers cannot be taken “at their word” to substantiate worker injuries and illnesses. Murray, whose subcommittee provides oversight of OSHA, was one of several congressional officials that had requested the report.

More: GAO report

Photo: Sen. Patty Murray, D-WA (AP)

COMBUSTIBLE DUST HEARINGS DEC. 14

OSHA has set the stage for an ambitious if not dramatic rulemaking process to address hazards from combustible dust explosions.

Two stakeholder meetings to receive public input are scheduled for Dec. 14 in Washington, one in the morning and one in the afternoon. The agency hopes to hear from as many as 70 stakeholders. The meetings are vital to the rulemaking process as they will offer representatives from labor and industry, as well as professional workplace safety managers, the opportunity to provide feedback into the rulemaking.

Additional unannounced stakeholder meetings are planned for early 2010 and are likely to be held around the country.

OSHA published an advanced notice of proposed rulemaking Oct. 21 to solicit comments, data and other information on issues related to combustible dust hazards in the workplace. The intent of the standard will be to "comprehensively address the fire and explosion hazards of combustible dust," according to OSHA.

Combustible dust hazards can have broad safety and health implications covering industries that include food, wood product, pharmaceutical, tire, chemical, textile and furniture manufacturing, grain and coal handling and metal processing.

The hearings give those outside the agency their best opportunity to help shape the rule. To their credit, OSHA staff want that input, understanding the agency needs a valuable adjunct to their own expertise.

In somewhat of a twist, OSHA is designing the meetings more as group discussions on concerns and issues surrounding combustible dust hazards – rather than singular formal presentations as is typical.

Additionally, missing from the meetings should be the specter of politics. Both of Georgia’s Republican senators, Johnny Isakson and Saxby Chambliss, have endorsed a combustible dust regulation. One of the seminal, tragic events involving dust occurred, of course, in their state, the Feb. 7, 2008, explosion at the Imperial Sugar refinery in Port Wentworth near Savannah that killed 14 people and injuries scores of others.

More: Details on OSHA combustible dust hearings, OSHA combustible dust rulemaking, U.S. Chemical Safety Board safety video on Imperial Sugar.

OSHA: USE OF GHS SCHEMES OK

In a recent Letter of Interpretation, OSHA is signaling its "qualified" acceptance of provisions of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals, or GHS – with the proviso that any labeling and material safety data sheets adhere to its hazard communication standard.

OSHA’s reply comes at a time when the agency is advancing long-anticipated rulemaking that aligns GHS and its HAZCOM rule. Under the standard, OSHA requires employers to maintain a recognition, labeling and training program for workers exposed to hazardous chemicals in the workplace. GHS is a global standard used in Europe and other countries worldwide that addresses inconsistencies in hazard classification and communications, though it has not yet been formally adopted in the United States despite widespread agreement of its merits.

In response to an inquiry from the safety manager of a Wood Dale, IL manufacturer of industrial inkjet printers, OSHA said it would not pursue enforcement activity against U.S. firms that use GHS labeling classification schemes "as long as the (European Union) GHS label contains the information required" by its HAZCOM rule, 29 CFR 1910.1200. If provisions are met, "OSHA will consider the EU GHS label sufficient," Richard Fairfax, OSHA director of the Directorate of Enforcement Programs, wrote Oct. 6.

Benjamin Garth Studebaker, safety manager at Videojet Technologies Inc., had written OSHA April 20 seeking clarification. Videojet Technologies uses ink products in manufacturing, some of which are considered hazardous to workers and subject to regulation in the United States, Canada and Europe.

In his inquiry, Studebaker had sought to ensure that his company's use of EU GHS labels was in line with the spirit and intent of OSHA’s HAZCOM rule.

Fairfax cautioned employers to be diligent in conforming to the HAZCOM rule against GHS because differing classification schemes "may affect the information provided on both the safety data sheet and the label."

Fairfax additionally pointed out in his letter that employers under OSHA’s HAZCOM rule must meet obligations that are "distinct" from those of manufacturers, importers or distributors of chemical products. For instance, employers are not held responsible under the rule for inaccurate information on the data sheet or label that they accepted in good faith but did not prepare.

OSHA, with broad support of labor and industry interests in the United States, is promulgating rulemaking on GHS to remedy inconsistencies globally with its HAZCOM rule. One benefit of the GHS is that its labeling schemes include the use of signal words, pictograms and hazard and precautionary statements as a way to enhance worker comprehension and thus reduce chemically related fatalities, injuries, and illnesses.

OSHA published a Notice of Proposed Rulemaking on GHS in the Federal Register Sept. 30, saying it would be the first in a series of aggressive steps to get a rule on the books. A 90-day comment period runs through Dec. 29, and the agency is expected to convene a series of public hearings early in 2010. Under the rulemaking, GHS alignment would be phased in over three years.

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More: OSHA GHS Letter of Interpretation, OSHA hazard communication standard, OSHA rulemaking on GHS

'SICK LEAVE' BILL ADVANCING

Congress is moving swiftly to enact temporary legislation to provide mandatory sick leave for workers sickened by the H1N1 virus and other influenza-related illnesses.

Any legislation is sure to give the business lobby heartburn, but this is a train that seems to be leaving the station with dispatch. Congress and the federal bureaucracy have made it a priority in recent years to be attentive to issues involving public preparedness, and mandatory sick leaves falls in that policy junction.

Both the Senate Health, Education, Labor and Pensions Committee and House Education and Labor Committee have planning hearings for Nov. 10 and the week of Nov. 16, respectively. Education and Labor Committee leaders, Rep. George Miller, D-CA, the committee chairman, and Rep. Lynn Woolsey, D-CA, introduced the Emergency Influenza Containment Act (HR 3991) on Nov. 3.

Expect a companion bill from the Senate following the HELP Committee hearing. If Sen. Tom Harkin, D-IA, HELP Committee chairman, sponsors the bill, like his House counterpart Miller that will give the effort additional urgency.

Five Days of Leave

The Miller-Woolsey bill, titled the Emergency Influenza Containment Act, would mandate paid sick leave to full-time and part-time workers being told to leave work or not come to work because the employer believes the employee has symptoms of a contagious illness or has been in close contact with someone showing symptoms of a contagious illness. The legislation defines a contagious illness as "influenza-like-illnesses," such as the spreading H1N1 virus.

The legislation would determine the amount of sick leave for covered workers based on calculating their regular pay rate and scheduled work hours, up to five days of paid leave. If workers continued to be sick, they could go on unpaid leave under the Family and Medical Leave Act or other employer sick leave polices, thus protecting their jobs, according to provisions of the legislation.

The legislation directs the Department of Labor to establish guidelines for implementation, but does not specify how it would be enforced if passed. OSHA could get that role as it already has a considerable workplace enforcement apparatus in place. Co-sponsor Woolsey chairs the Workforce Protections Subcommittee under Education and Labor, the sub-panel with primary oversight authority over OSHA in the House.

Misgivings from Business

The bill has met with early criticism from organizations that represent businesses, including the National Federation of Independent Business and U.S. Chamber of Commerce, but it appears to be written in a way to try to mollify expected opposition. For instance, the legislation would exempt small employers and companies that already provide five or more paid sick days per year, and it would not apply to employers with fewer than 15 employers.

Workers also would not be covered simply by calling in sick on their own, but would have to directed by their employer to stay home. However, workers will benefit from a provision that prohibits their being fired or disciplined when they comply with the employer’s directive to stay home or not come to work.

That Congress would seek to enact emergency H1N1 legislation is not unexpected. Federal authorities through OSHA, the Centers for Disease Control and Prevention and other agencies have advised employers in the strongest terms for many months to establish their own flexible policies regarding sick leave for contagious workers struck by influenza-related illnesses.

40 Percent Lack Sick Leave
Signaling urgency to the legislative action is the recent New York Times article that cited government statistics in reporting that nearly 40 percent of all private-sector workers do not receive paid sick days – thus precluding many of them from deciding to stay home if they are sick since they would not be paid.

The Times story also quoted a 2008 survey that found that 68 percent of those not eligible for paid sick days said they had gone to work with a contagious illness, while 53 percent eligible for paid sick days said they had done so as well.

Miller said a CDC report that estimates that a sick worker will infect one in 10 coworkers offers sufficient justification for legislation.

Congress historically enacts emergency legislation sparingly. In 2008, legislation was sponsored to address the agriculture labor shortage in California, for instance, and it considered emergency medical legislation for Hurricane Katrina victims.

More: Emergency Influenza Containment Act, New York Times sick leave article

Photo: Rep. George Miller (Source: House Education and Labor Committee)

POLITICS OF SAFE PATIENT HANDLING

Health-care workers are rallying again around legislation that would compel hospitals and nursing facilities to install patient handling equipment to stem a staggering tide of lifting musculoskeletal injuries.

The issue of a federal standard being promulgated to address safe patient handling has percolated with urgency in Washington since the early part of the decade -- part of a larger, very contentious labor-industry debate over ergonomics. Safe patient handling is one of those workplace issues that touches down to the core of workers because it involves personal care, such as in nursing in hospitals, nursing homes and home care.

When the American Nurses Association Inc. puts out the talking point that "every day the average nurse lifts 1.8 tons per shift" repeatedly lifting, moving, transferring and repositioning patients, that is a statistic stakeholders can understand. The Silver Spring, MD-based ANA contends that back injuries affect up to 38 percent of all nurses and prompt many of them to leave the profession early thus contributing to a shortage.

But the politics of new regulation – especially one that would demand capital purchases of new, physical equipment such as patient lifts – has caused the issue to emerge in fits and starts.

Conyers, Franken Introduce Bills
Rep. John Conyers, D-MI, introduced the Nurse and Health Care Worker Protection Act of 2009, HR 2381, in the House May 13, and Sen. Al Franken, D-MN, dropped a companion bill, S 1788, in the Senate Oct. 15. It was the third time since 2006 that Conyers has introduced a version of his bill. The other versions languished in committee.

If enacted, compliance would be given over to OSHA, adding another significant duty to an agency already viewed widely as having a full plate of statutes to enforce. The legislation would compel OSHA to issue a rule that would require, among provisions, that facilities employ lift equipment and conduct worker training on safe patient handling.

Ergonomics regulation is nothing new at OSHA. The agency promulgated an ergonomics standard at the end of the Clinton administration, but the Republican-controlled Congress repealed it under the Congressional Review Act shortly after President Bush’s first term began in 2001. The act allows Congress the opportunity to review and overrule new federal regulations. It should be noted that current interim OSHA head Jordan Barab played a key role in developing the repealed standard nearly a decade ago. In March 2003, OSHA issued ergonomics guidelines for the nursing home industry that included safe patient handling, but the guidelines (which were updated in March 2009) do not have the force of regulation.

At a stakeholder meeting in November 2002 to review the draft of the guidelines, the meeting offered the spectacle of seemingly vulnerable and politically insignificant nursing aides, orderlies and attendants complaining on one side about debilitating musculoskeletal injuries while briefcase-carrying industry executives on the other side countered that the science of ergonomics was not firmly established. The draft targeted an array of improvements, but safe patient handling dominated the discussion.

Workers' Comp Savings

Proponents of lift equipment could not seem to sway opponents that day that the costs of implementation would be more than offset through lowered workers’ compensation insurance payments employers make when workers are away from the job. The administrator of a 100-bed Ohio nursing home offered information at the meeting that the facility’s workers’ comp costs had declined from an average of nearly $140,000 per year to less than $4,000 per year with reduced absenteeism and overtime. The administrator had put the cost of buying the equipment at $280,000.

The Franken bill calls for a $200 million grant program to cover the cost of acquiring safe patient handling equipment for cash-strapped facilities, and that may ease some of the financial burden.

The ANA is clear that it is seeking the "elimination of manual patient handling," arguing that 12 percent of nurses leave the profession annually because of back injuries.

The Conyers-Franken legislation would move the narrow issue of safe patient handling beyond the realm of guidelines and represent an opportunity to get something related to ergonomics workplace enforcement on the books. That would be a victory for proponents, who complained that during the Bush years the agency did not vigorously promote the guidelines. That notion is borne out by OSHA’s recent announcement – under the new Democratic-led regime headed by Barab – that it has stepped up ergonomics enforcement at nursing homes as part of its annual Site Specific Targeting program.

One influential group, the American Industrial Hygiene Association, in adopting a position favoring safe patient handling legislation on June 30, recommended that hospitals, nursing homes and other facilities develop written safe patient handling policies or related policies that incorporate necessary elements of a safety and health management system. Policies should address patient handling hazard assessments, task types and frequencies, patient dependency levels, environmental restrictions and enhanced use of mechanical devices among elements, the AIHA said.

Favorable Signs for Action

Proponents believe now is the time to get their way on the issue, pointing to likely support by the Obama administration and significant majorities in the House and Senate. Additionally, one early cosponsor with Conyers, Rep. Lynn Woolsey, D-CA, is chair of the Workforce Protections Subcommittee, part of the House Education and Labor Committee, likely guaranteeing a future congressional hearing. The bill has garnered 11 other cosponsors among Democrats in the House so far, but whether it will push beyond committee with a groundswell of support is uncertain.

Helping proponents’ cause is successful legislation on the state level. Five states, Ohio, Texas, New York, Washington and Rhode Island, have enacted legislation. Nine others have introduced legislation; they are California, Florida, Hawaii, Illinois, Iowa, Massachusetts, Michigan, New Jersey and West Virginia.

But politics still may dog the issue of safe patient handling. While favorable conditions do exist for momentum to drive passage, poor national economic conditions present a dilemma as many facilities are already straining under the weight of the recession and rising health-care costs. A consensus has emerged that technologically feasible solutions that can control ergonomic hazards do exist in the marketplace, but matching that ambition with cost and practicality may present additional hurdles.

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More: Senate safe patient handling legislation, OSHA ergonomics guidelines for nursing homes

Safe Patient Handling images: OSHA, 2003

REPORT: OSHA FINES BP $87 MILLION

An extraordinary report from the New York Times says OSHA will announce later today an $87 million fine against petroleum refiner BP for failing to correct safety problems stemming from the highly chronicled 2005 Texas City, TX explosion that killed 15 workers.

The newspaper report, citing anonymous sources, noted that the fine is the largest levied in OSHA history -- more than four times the size of a $21.4 million fine BP agreed to pay the government after Texas City.

The magnitude of the fine will reverberate in Washington and globally and dramatically raises the stakes for all employers facing OSHA enforcement actions. Confirming the fine to the Times in advance of a formal announcement is intended to have maximum news-cycle impact.

Over several weeks since September, OSHA and BP have waged a de facto public relations skirmish over OSHA's determination that BP failed to carry out the promised safety improvements at its U.S. facilities as part of the settlement agreement. In recent days, OSHA denied BP's request for more time to document improvements. BP has said it has been diligent in making changes.

OSHA likely will have amassed significant evidence to substantiate its claims of BP's alleged intransigence in the matter. Since June 2007, the agency has operated a National Emphasis Program, targeting process safety management hazards in the refinery industry with stepped up enforcement resources.

Under the Occupational Safety and Health Act, BP will have the opportunity to contest the penalty.

More: New York Times article, Update: Labor Secretary Hilda L. Solis statement

HEARING TARGETS OSHA STATE PLANS

The House Education and Labor Committee convenes a key hearing at 10 a.m. October 29 to examine OSHA’s recently released review of Nevada OSHA -- a beleaguered workplace safety and health state plan program beset by negative publicity surrounding fatalities and injuries in Las Vegas’ booming construction industry.

In what is normally an unusual occurrence, the star witness on the panel will be Nevada’s Democratic Sen. Harry Reid, the highest-ranking officer in the Senate as majority leader. Facing what pundits are saying possibly will be a difficult re-election in 2010 for a fifth term, Reid has little choice but to participate and get on the record on workplace safety or face claims of inattentiveness to the needs of constituents back home. Expect the panel to treat the majority leader with much accommodation and conviviality.

While the focus of the hearing will target Nevada OSHA, the background chatter will be about OSHA’s announced intention to review all state plans in light of the report. This aspect of the hearing will be of great interest to two Education and Labor leaders, the committee chairman George Miller and Workforce Protections Subcommittee chair Lynn Woolsey, both Democrats from California, a state plan state.

For fiscal 2009, Congress allocated about $92.5 million for OSHA-funded state plan programs, or about a fifth of the agency's $513 million budget. In its FY 2010 budget request, the Obama administration is seeking a sizable increase in State Plan funding to $106.4 million.

With those kinds of dollars floating around, OSHA acting administrator Jordan Barab has said he wants to ensure that all state plans functioning the way they should – matching or exceeding federal OSHA efforts. Twenty-seven states and territories operate state plans, per the Occupational Safety and Health Act, and 22 of those operate comprehensive programs.

Education and Labor first examined construction safety in Nevada at a June 2008 hearing, including receiving testimony about deaths during the building boom on the Las Vegas strip.

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More: Hearing/Webcast information, Nevada OSHA report, Education and Labor's June 2008 construction hearing.

MAIN CONFIRMED TO LEAD MSHA

Finally, the Mine Safety and Health Administration has a new boss man on board.

The Senate voted unanimously Oct. 21 to confirm the nomination of Joseph Main (photo) as assistant secretary of labor for MSHA, installing the former United Mine Workers of America safety and health director as the nation’s lead voice on mining safety.

Main’s confirmation is being widely hailed by mining activists who had faulted the Bush administration for allegedly giving operators too much sway over the agency. UMWA President Cecil Roberts, said in a statement that Main "will bring a refreshing change to an agency that for too long has favored production over strong enforcement of workplace safety and health in America’s mines."

Main takes over an agency that has been rudderless since the end of Bush’s first term when Dave D. Lauriski resigned in November 2004. The administration then nominated Richard E. Stickler to replace Lauriski, but could not achieve a vote in the full Senate over Democratic objections. In a quirk of Washington politics and bureaucratic finagling, Stickler nonetheless ran the agency in an acting capacity through the end of Bush’s second term.

Main will have a considerable agenda at MSHA. The agency is still implementing provisions of the landmark Mine Improvement and New Emergency Response (MINER) Act of 2006, bipartisan legislation spawned out of a spate of high-profile, fatal mining accidents that year. Many activists and political officials alleged a diminished focus at MSHA on mining enforcement during the Bush administration.

Additionally, Main will need to remake the MSHA bureaucracy into a more user-friendly agency, ensure staffing levels among mining inspectors are adequate due to retirements, and approve a plan to reduce miners’ exposure to coal dust.

MSHA regulates more than 2,100 coal mines and 12,700 metal and non-metal mines on an annual budget of about $350 million.

President Obama nominated Main in July, and, in a somewhat unusual occurrence for Washington, Republicans largely echoed Democrats’ support for Main. Generally, Republicans will scrutinize a labor union officials more closely, just as Democrats will look more warily at a nominee coming from industry.

But with Main, there was no controversy. Why? Perhaps Main was too pristine to oppose, even in the face of the Democrats' marginalizing of the Stickler nomination. Perhaps a deal was cut in exchange for some other political priority, which happens regularly in Washington.

Or perhaps the GOP realized that a fresh approach was needed at the agency -- even with the leader coming out of the UMWA. HELP Committee Ranking Member Sen. Mike Enzi and longtime committee member Sen. Orrin Hatch are from mine-rich western states in Wyoming and Utah, respectively. And Utah was the home of the nation’s last major mining disaster at the Crandall Canyon mine in Emery County that killed 6 miners and 3 rescuers in August 2007, the handling of which was a public relations nightmare for the agency.

Bottom line for Main is he will have the benefit of an extended honeymoon period to shape dramatically U.S. mining safety policy.

More: Main's 2003 congressional testimony on coal dust (page 9)

Photo: Joseph Main (Source: Charleston, WVA, Gazette)

BUSY WEEK ON OSHA FRONT

A flurry of news on OSHA is breaking this week. Here are some of the developments, along with some perspective and sources for additional information:

Michaels Nomination Stalls
The Senate Health, Education, Labor and Pensions Committee declined Oct. 21 to take up the controversial nomination of David Michaels (photo) to head OSHA. The committee pulled Michael’s name at the last minute from nominees it was considering during an executive session. Conservative and industry organizations have vehemently opposed Michaels’ nomination, arguing his views on applying science to business regulation were out of the mainstream. Michaels, an epidemiologist, is interim chair of the Department of Environmental and Occupational Health at the George Washington University’s School of Public Health and Health.

Perspective: Removing Michaels’ name from consideration of nominees Oct. 21 is seen as more procedural than anything else -- perhaps also a political attempt by supporters on the panel to lower the noise level over the nomination. The belief is that the nomination will go through, particularly given the Democrats’ 13-10 majority. Key to the controversy now is that the committee chairman, Sen. Tom Harkin, D-IA, is willing to advance Michaels without benefit of a confirmation hearing, arguing that Michaels’ views and record already are widely circulated. Some liberal Michaels backers, however, are saying perhaps there should be a hearing as a way to counter charges against the nominee.

More: Earlier Michaels posting from this blog, U.S. Chamber of Commerce letter opposing Michaels.

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Combustible Dust Rulemaking
OSHA Oct. 21 published an advance notice of proposed rulemaking to address hazards associated with combustible dust explosions. The move is a procedural rulemaking step that will allow the agency to gather and analyze information formally. The trigger for the action was a disastrous 2008 explosion at the Imperial Sugar plant in Port Wentworth, GA that killed 14 workers. The U.S. Chemical Safety Board, one of the first entities to call for a combustible rule, said in a November 2006 report that 280 dust fires and explosions at U.S. industrial facilities over the past 25 years caused 119 deaths and more than 700 injuries. In conjunction with the rulemaking, OSHA released a status report on its Combustible Dust National Emphasis Program, noting that an unusually high number employers have been cited under the General Duty Clause of the Occupational Safety and Health Act since the NEP was implemented in 2007. The public comment period for the ANPR is 90 days, and OSHA plans to conduct stakeholder meetings.

Perspective: OSHA’s action surely delights critics of the previous administration. Political officials and labor activists contended OSHA under former President George W. Bush had dragged its feet on seeking solutions. While a member of Congress, Labor Secretary Hilda L. Solis was vocal in her support of a standard. The ANPR will target issues such as data collection, dust hazard assessment and regulatory approaches. It is interesting that OSHA decided to initiate the ANPR rather than the notice of proposed rulemaking, which is an actual statutory step. OSHA under Bush was criticized for using the ANPR as a way of unnecessarily extending the rulemaking process.

More: OSHA's combustible dust ANPR, OSHA's combustible dust NEP status report, U.S. Chemical Safety Board You Tube video on combustible dust.

High-Visibility Workzone Apparel Required
In a Letter of Interpretation released Oct. 20, OSHA affirmed that highway construction workers are required to wear high-visibility warning garments for safety under the Occupational Safety and Health Act. This interpretation follows a 2004 OSHA ruling on the same matter, but the Occupational Safety and Health Review Commission decided OSHA’s 2004 letter was limited and required that the Federal Highway Administration's Manual on Uniform Traffic Control Devices governed use of high-visibility apparel in highway construction. In the Oct. 20 letter, OSHA emphasized Section 5(a)(1) of the OSH Act, the General Duty Clause, as the threshold, stating, in effect, that it supersedes any MUTCD requirements.

Perspective: The ruling means employers will need to ensure their highway workers have and are wearing high-visibility garments or face sanction under the General Duty Clause. OSHA noted in its announcement that Bureau of Labor Statistics show 425 road construction workzone fatalities between 2003 and 2007. Workzone safety long has been an agency priority. Use of the General Duty Clause, which requires, in part, that employers provide a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm," is part of a more aggressive approach to enforcement by the new OSHA regime.

More: OSHA high-visibility apparel Letter of Interpretation

Las Vegas Strip: CenterCity Project (Source: Flickr.com)

States Face Scrutiny After Nevada Findings
In releasing a scathing report Oct. 20 detailing deficiencies of Nevada OSHA’s state plan program, OSHA said it will conduct a comprehensive review of all 27 state plan programs. The report on Nevada's occupational safety and health program, spotlighted by intense media coverage to the deaths of construction workers at the massive CenterCity Project along the Las Vegas strip, revealed a number of serious concerns with the program's operation, OSHA said. They included the failure to issue appropriate willful and repeat citations, poorly trained inspectors and lack of follow-up to determine whether hazards were abated. Nevada promised it would reorganize its program to ensure accountability. "As a result of the deficiencies identified in Nevada OSHA's program … we will strengthen the oversight, monitoring and evaluation of all state programs," OSHA acting administrator Jordan Barab said.

Perspective: In most cases the states are praised for taking on occupational safety and health regulation. There is even an organization of state plan states that issue an annual report on their efforts. In crafting the OSH Act, Congress believed that states should have the opportunity to run their own programs – with federal OSHA funding – because they knew the intricacies of hazards in their jurisdictions better than federal bureaucrats. Under the act, the proviso for state plans is that they match or exceed federal OSHA efforts. However, the results from Nevada do not bode well for what else OSHA might find lacking in other states.

More: Nevada OSHA report, Occupational Safety and Health State Plan Association 2008 annual report.

OSHA READIES DIRECTIVE ON H1N1

As concern deepens in the country over the spread of the H1N1 virus, OSHA is moving with dispatch to issue a compliance directive aimed at ensuring healthcare workers and emergency responders receive necessary and appropriate protections.

The agency said Oct. 14 that the directive would outline uniform procedures when it conducts inspections of workplace deemed to be high to very high risk for occupational exposures to the 2009 H1N1 influenza A virus.

Healthcare employers such as hospitals, nursing homes, personal care facilities and other businesses should prepare for a relatively quick receipt of the directive. Usually when a federal agency takes the step of announcing that a directive is imminent, it means the document likely has been formulated and is undergoing through final internal reviews.

Not a Standard
An OSHA compliance directive is not a legal standard that compels employers to adhere to certain workplace rules, but nonetheless carries considerable weight within the agency. In effect, compliance directives offer guidance to employers on how the agency expects them to tackle a particular workplace issue. OSHA said its H1N1 directive will follow closely interim guidance already released by the Centers for Disease Control and Prevention.

A key component of the directive will be to incorporate the use of Hazard Alert Letters, according to OSHA’s announcement. Hazard Alert Letters will give the agency a greater measure of control to push for additional protections at a workplace where no formal violations of OSHA standards have been found following an inspection.

OSHA uses Hazard Alert Letters as a regular function of its enforcement activity, particularly in ergonomics compliance. The letter will advise the employer to report any controls it may have implemented to address hazards, particularly those recommended by inspectors. Clearly, employers are wise to be proactive in reporting back to OSHA so they do not expose themselves to a General Duty Clause violation, the catchall provision in the Occupational Safety and Health Act that allows the agency to act when there is no specific standard.

Labor Unions Urged Action

In May, shortly after Jordan Barab was named acting OSHA administrator, Peg Seminario, the AFL-CIO safety and health director, wrote to Barab on behalf of several labor union requesting that OSHA "immediately issue a hazard alert and/or compliance directive that makes it clear that exposure to the H1N1 virus in health and emergency response settings poses a recognized hazard to workers and requires protective measures." The unions were concerned that many states and workplaces were not following these CDC guidelines on H1N1, Seminario wrote.

Respiratory protection will be at the core of the directive. In inspecting healthcare facilities, OSHA said employers will need to implement what it call a "hierarchy of controls," including encouraging workers to receive H1N1 vaccinations. Respiratory protection is another one of those controls, and OSHA expects employers to adhere to its respiratory protection standard, which covers protocols such as training and fit testing. CDC guidelines recommend respirator use when healthcare are within 6 feet of H1N1 patients.

Workers' Objections

OSHA and other federal agencies clearly will be challenged with H1N1 enforcement. While few doubt the potential seriousness of the virus, some healthcare workers have objected to having to submit to mandatory seasonal flu and H1N1 vaccinations. And some parents are balking at having their young children vaccinated.

In New York, for instance, healthcare workers are required to be vaccinated against the virus by Nov. 30 or face the potential of losing their jobs. But many are balking, worried that vaccinations may not be safe, and see mandatory vaccination as an invasion of privacy or infringement of religious principles. A judge Oct. 16 issued a temporary injunction halting implementation of the order.

Additionally, a poll released Oct. 8 by the Associated Press reported that more than a third of parents surveyed said they do not want their children vaccinated. The survey cited parents as saying they were about side effects from the new H1N1vaccine, believing it is untested.

More: CDC guidelines on H1N1, AFL-CIO letter, New York State mandatory vaccination requirements

ERGONOMICS IN PLAY AGAIN

On the surface, OSHA’s Site Specific Targeting program usually is an unremarkable regulatory exercise.

SST is the agency's primary programmed inspection plan for non-construction workplaces with the highest rates of injuries and illnesses. OSHA typically will tweak the plan each year, and changes arrive largely with very little fanfare.

But not this year.

Judging by a number of significant changes recently announced to the program, OSHA’s new leadership, buoyed by sweeping new approaches to labor policy by the Obama administration after eight years of GOP control, seems intent on using the SST process to address a number of its enforcement priorities -- particularly ergonomics.

Jordan Barab, who is running the agency as acting administrator, has expressed his frustration publicly in the past that OSHA dropped the ball on moving employers to ergonomics compliance during the Bush administration.

SST Protocol

Under SST, OSHA compiles inspection lists via its annual Data Initiative that surveys 80,000 employers with in industries with historically high injury and illness rates. The agency then develops primary and secondary inspections lists calculating case rates based on "days away from work, restricted work activity or job transfer," called the DART rate, or "days away from work injury and illness," the DAFWII rate.

OSHA staff then forwards the lists to its regional and area directors throughout the country to proceed with inspections. Always haunting for business owners and employers is the letter from OSHA informing them that their establishments are on the lists. Typically, about 4,000 workplaces receive inspection visits.

Effective July 20, OSHA began implementing a number of significant changes to SST, including using the program to advance ergonomics compliance.

SST Program Changes
Here are some key changes in the SST program for 2009-2010, which were announced in a Sept. 4 OSHA news release:

• Unlike in the past, establishments selected for the primary and secondary lists are divided into three sectors with specific DART and DAFWII thresholds. The sectors are manufacturing, non-manufacturing and nursing homes. The SST primary list includes 3,100 manufacturing workplaces with a DART rate of 8 or more or a DAFWII rate of 6 or more; 500 non-manufacturing worksites with a DART of 15 or more or a DAFWII of 13 or more, and 300 nursing homes with DART or DAFWII rates of 17 or more or 14 or more, respectively. The secondary list will have incrementally lower DART and DAFWII rates and includes nursing homes for the first time.
• OSHA’s recently announced Recordkeeping National Emphasis Program is replacing inspections of low-rate establishments in high-rate industries that formerly were conducted under SST. This change will free up resources for SST while placing greater scrutiny on through the recordkeeping initiative on workplaces that OSHA suspects might be "cooking the books."
• Adds to the primary inspection list some establishments that did not respond to the 2008 OSHA Data Initiative survey. This change means OSHA will be aggressive at ferreting out workplaces that did not return injury and illness data. By placing them on the primary list, it increases their chances for an inspection. "The agency's intent is to deter employers from not responding to avoid inspection," OSHA said in its SST directive.
• Clarifies how establishments will be selected for industries that do not have permanent workplaces. OSHA area offices will visit the employer’s central office to determine which worksites are available based on the type of work scheduled and the length of time remaining before the worksite closes up shop.
• Changes the threshold of workplaces subject to SST inspections as establishments with 40 or more employees rather than 10 or fewer. OSHA will direct its inspections to larger worksites -- thus creating the potential for greater enforcement sanctions.
• Changes the way it addresses employers with multiple worksites under SST. When two or more establishments of the same employer are included in the same Data Initiative survey sheet returned to the agency, OSHA will make its selections based on each establishment’s DART and DAFWII rates.
• Clarifies that OSHA compliance officers will not wait until the employer’s records are produced to begin the walkaround part of the inspection. This change is in keeping with the Recordkeeping National Emphasis Program. While employers have four hours to provide the required records, that won’t stop inspectors from getting started with the inspection.

When OSHA talks about SST, it emphasizes that the program helps the agency direct its precious enforcement resources to workplaces where workers are getting hurt the most. Manufacturing and nursing homes are viewed as refuges for musculoskeletal disorders, and OSHA intends to use SST to address these. In the manufacturing sector, meatpacking, automotive and poultry processing are among industries likely to receive greater scrutiny.

Impatience on Ergo
Barab, a former organized labor official and more recently an adviser on workplace issues for Democrats on the House Education and Labor Committee, is impatient with industry’s contention that ergonomics compliance is costly and based on shaky science.

Barab recalls 2001 when he served at OSHA during the Clinton administration. OSHA promulgated an ergonomics standard during Clinton’s waning days, only to have the Republican-controlled Congress repeal it under the Congressional Review Act shortly after President Bush’s first term began. The act allows Congress the opportunity to overrule new federal regulations.

That move delighted industry, but drew eight years of complaints among organized labor and others that Bush had let industry off the hook on ergonomics.

Despite the Democrats returning to power under President Obama, Barab cannot summarily reinstate the ergonomics standard because under statute once repeal occurs it "may not be reissued in substantially the same form," according to the act.

But adept use of enforcement programs like SST shows indeed there there is more than one way to skin a cat.

More: OSHA's Site Specific Targeting directive

Photo: Jordan Barab (Source: OSHA)