You Break It, They Try It

Deborah Berkowitz has served as Chief of Staff for the Occupational Safety and Health Administration (OSHA) since August 2009. She helps to coordinate OSHA’s policy initiatives aimed at improving the agency’s enforcement, outreach, and training efforts to make workers safer.

President Obama chose a leadership team for the Labor Department and OSHA that represented a sea change from the Bush Administration. What major initiatives has OSHA taken to improve worker safety over the last four years?

I think the Agency has become more efficient and effective. We have strengthened the program that protects workers, under 21 different statutes, who complain to their employer or the public about worker safety or report an injury. The Office of the Inspector General notified us in 2009 that this program had not been effectively enforced over the previous eight years, so we have made an effort to turn the program around and strengthen enforcement of whistleblower laws.

Our Secretary of Labor, Hilda Solis, has been a big advocate of reaching out to vulnerable employees who may not speak English or have the same support systems as others. OSHA is collaborating with community groups and consulates in reaching out to vulnerable workers in dangerous industries such as construction, food processing, and recycling to educate them on their rights to a safe workplace and confidential reporting of hazards. OSHA is trying to empower workers to use their rights to achieve a safe workplace.

OSHA is very small and was established by Congress as a small agency. Educating workers and employers is critical to the functioning of the laws. OSHA has redone its website to make it more accessible. The website received 200 million visits last year, and OSHA saw 200,000 calls to the reporting hotline and 33,000 emails in 2011, up from 11,000 in 2008.

OSHA has also expanded its program for small businesses that have fewer than 250 workers. Small businesses can call OSHA and receive a free Health and Safety consultancy, separate from enforcement. We don’t want any small employer to claim that they can’t protect their employees because they couldn’t afford to hire a health and safety expert. To the same end, OSHA has improved its website and issues press releases to ensure that no employer can say they never saw important safety information. We have also embarked on OSHA’s first nationwide safety publicity initiative, including campaigns to prevent falls in construction and excessive heat injuries and fatalities during the summer.

OSHA only has about 2,200 inspectors, including state partners, and a budget of less than $600 million to protect over 130 million workers and ensure compliance in over eight million workplaces. How does OSHA leverage data, reports from workers, and other methods to protect America’s workers?

OSHA has a lot of tools. We set and enforce standards and have compliance assistance, outreach and education. In terms of enforcement, State and Federal OSHA perform only about 90,000 inspections a year. The goal is to inspect workplaces where we can make a difference. There are a lot of doubters on the Hill who believe we don’t need enforcement, but we have always known that focused enforcement is one of the most effective tools we have. OSHA tries to focus on and inspect the most hazardous workplaces. We instituted a “Severe Violator Program” to address employers who fail to take their responsibilities to comply with the law and maintain a safe workplace seriously. This program has been very successful at focusing on the worst actors. OSHA’s job is to level the playing field. Most employers want to do the right thing, so OSHA tries to ensure that employers who cut corners do not get an unfair advantage through endangering their workers.

A recent study by Harvard Business School and UC Berkeley Business School looking at California OSHA found that inspected employers not only saw their injury rates fall but also saved an enormous amount of money through savings from decreased worker’s comp. One of the most important messages we have is that safety pays!

Still, too many workers are injured or killed in accidents that are totally preventable. In October 2009, a construction worker died after falling from a third story roof where he was working unharnessed, which is contrary to OSHA regulations. The employer had the safety harnesses in a box on the roof, but told the employees to just get to work. We prosecuted him through the Justice Department and convicted him, but the law is weak and this violation is only a misdemeanor, so the employer has paid a fine and served a limited sentence. These are the employers we need to get to, because they are out there and people get killed.

OSHA has limited resources by comparison with other agencies, so it really has to leverage its resources intelligently to protect workers.  OSHA is totally data driven in identifying employers for inspections. 2000 of our inspections each year are targeted at employers who report the highest injury rates. By law, larger companies in high hazard industries must keep records of serious injuries and illnesses, but they don’t have to send them to OSHA. About a decade ago OSHA started a program that asked about 240,000 employers in manufacturing to send us their injury and illness rates. Using this data, OSHA identifies the 14,000 most dangerous employers and sends them letters suggesting they use OSHA’s free on-site consultation service or they could be subject to inspection.

We also have national emphasis targeted enforcement programs. For example, the Bureau of Labor Statistics’s (BLS) 2010 data showed the injury rate in the health care sector was on the rise while other sectors were improving. Our nursing special emphasis enforcement program focuses on safe patient handling, as their injury rates are incredibly high and it’s easy to correct that hazard (there are patient lifts you can use and plenty of tools). Probably our most effective targeted enforcement program  is on amputation standards. We use data from the Bureau of Labor Statistics and identify industries with highest amputation rates. We go into these workplaces and provide education and enforcement. All these initiatives are data driven, and we are evaluating these programs to see how they really work. Our standards are very common sense,  and  our enforcement must be data-driven.

We also respond to individual complaints, but it must be a serious, well-documented hazard. The worker or his representative must sign it. We are alerted to  some of the most serious hazards when workers file complaints. It may be because the workers have probably already brought the issue to the employer, who may have failed to address it, so OSHA is the last resort for these workers. Nobody knows a workplace better than the workers; we like to say that workers are the best inspectors!

The BLS data comes from the records employers keep on site. Is there any concern that some employers might be falsifying or underreporting injuries?

Larger employers (more than ten employees) in high risk industries keep logs of serious job related illness and injuries. When we arrived at OSHA in 2009 there was a big Congressional report that there was serious underreporting of injuries. Employers maintain these logs themselves, and OSHA has no right to get them. We only see them now if we enter a workplace on an inspection. Every year samples of logs are sent to BLS, and that agency uses them to calculate the national safety statistics. One of our signature initiatives has been talking about the importance of having accurate records. Your record of work related injuries and illnesses is your map to the hazards in your workplace. If it’s not accurate and you’re not reporting injuries, you can’t prevent them, you can’t investigate them, and you can’t figure out how to prevent the next incident.

We are also concerned with employers instituting incentive programs that grant their workers a bonus if they don’t report a work related injury or illness. These programs are such that employees don’t get a bonus for reporting a hazard, participating in safety training, or fixing a problem. All the incentives are based around the number of injuries and illnesses reported, so if they do suffer a work related injury and just take a sick day and fail to report an incident as work related they would be eligible for a bonus. But then the employer has no reason to prevent it the next time. We see these types of programs in construction and general industry. We issued a memo, which stated that programs that actively discourage workers from reporting injuries are against the OSHA law. Accurate records are really important: they are important for employers, they are important for workers, and they are important for OSHA so we know what the dangerous injuries are and where to focus our resources. Safety numbers need to be based on actual safety.  Employers should have positive incentive programs to reward reporting of hazards, participating in safety committees, etc.

Health and Safety Scientists have seen a worrying trend in increased Musculoskeletal Disorders (MSD) or Repetitive Motion Disorders in the workforce, so why was a recent initiative to make it easier for employers to report MSDs struck down with Chamber of Commerce opposition?

We were trying to make it easier for employers to know how many MSDs such as back injuries they’re having. Right now employers already have to record musculoskeletal disorders. The employers (with more than ten employees) in high risk industries keep a log of all serious injuries with the date, type of injury or illness, and check columns if the injury is related to skin disease, hearing loss, etc. so employees can identify where their hazards are by looking at the most frequent type of injury or illness. We wanted employers, after they already recorded a  back injury or carpal tunnel, to check a column that this fell under MSD. This is the single largest group of injuries and illnesses in the workforce today, and there is nothing in the log to make that clear. This was a way for OSHA, workers, and employers to make tracking hazards easier, but there is a Congressional rider on OSHA’s appropriations that prohibit us from enacting this measure.

The Clinton Administration OSHA created an ergonomics standard that sought to address MSDs, but was struck down in 2001. Will OSHA look at this again?

We have a prohibition Congress put on us that we cannot issue that same kind of comprehensive standard. However, I’d like to give a shout out to several states that have addressed this issue. One of the worst industries for back injuries is health care, and several states have passed patient safe handling laws that really give a roadmap on how to prevent injuries. We are working on an initiative with health care employers to use their OSHA 300 injury and illness record to pull out the back injuries and figure out where they occur. We are providing education on best practices. And, as I mentioned before, we have also initiated an enforcement program with nursing homes – these homes can have a high rate of back injuries. We too think it’s an enormous problem and we are looking at how best to protect workers.

Feature photo: cc/paul goyette