Protecting Workers Pays Off: Part 1
Never has our title phrase rang more true than when it comes to workplace health and safety. It is a classic case of “pay me now, or pay me later” and occurs all too frequently and with increasingly serious consequences in our workplaces, even in the field of forensics and crime labs. We hope to convince you that following the former instead of the latter makes more sense, for your bottom line as well as your employees.
When we view the whole picture of employee and workplace health and safety, you can quickly see that it gets very complex. People from many different agencies in addition to your employees may become involved. Depending on your facility focus, your location, and whether your business is in the public or private sector, entities that may exert jurisdiction over you can include OSHA, EPA, FDA, state fire marshal, state environmental department, and others, right down to local environmental and emergency management officials.
To get started let us give you a few sobering statistics that we hope make an impression. According to the U.S. Bureau of Labor Statistics 2008 data there are about four million work-related injuries per year.1 That equates to around 11,000 injuries per day! There were 5,657 work place fatalities in 2007. That is almost sixteen deaths per day or one every hour and a half! If we include deaths from occupational illnesses, which are about ten times the fatalities, we have one work-related death every eight minutes. It is hard to fathom these numbers living in 2011 and considering all the information and knowledge we have compiled leading us into the 21st century.We are the first to admit these statistics are a little disheartening. But, they are also motivating, pushing us to work diligently every day to bring the numbers down, and reinforcing why we do what we do.
Why So Many Illnesses, Injuries, and Deaths?
Recently, Charles Jeffress, the former Assistant Secretary of Labor, commented in a Public Broadcasting Service Frontline interview that our current laws, particularly penalties for violations, are ineffective and that companies find it less burdensome (read more profitable) to take the risk of not having safety programs in place than comply with law.2 This is disturbing, but not the only reason for those rueful statistics. There are about 30 million employers in the United States, but only about 1.5 million have to report to OSHA. In addition, the Occupation Safety and Health Act, basically unchanged since its inception in 1970, does not cover public employers in states without Safety and Health laws, leaving about 8 million U.S. workers with no legal protection at all.3 The Occupational Safety and Health Administration—employing fewer than 2,000 inspectors—struggles to enforce the laws.And, too often the penalties and fines levied for violations are trivial compared to the cost of implementing technologies and programs consistent with OSHA standards.4 Which circles back to the statement by Mr. Jeffress and explains why it is true.
In summary, our dismal statistics for workplace illnesses, injuries, and fatalities are because we have an out-dated law, millions of businesses and workers are not covered, enforcement is weak or non-existent, and penalties are insignificant. This is totally unacceptable and we need to flip the table, not just because it is “the right thing to do” but because it also makes good business sense. See, even though Mr. Jeffress’ assertion that fines and penalties are too low is true, when all the costs of avoiding proper health and safety programs are factored in, it is better (read cheaper) to do things right.
The New Sheriff in Town—OSHA
In March 2010, Assistant Secretary of Labor, David Michaels, said he wanted to “make it clear that 5,000 preventable worker deaths and 4 million injuries recorded in our Nation every year are expensive, disruptive, wasteful, and completely unnecessary.”5 The new OSHA administration promises to be more aggressive in making sure everyone obeys the law. The top priority is giving emphasis to strong enforcement. Michaels admits that current OSHA penalties are not big enough to provide sufficient incentives. For example, if you willfully commit a worker safety violation that results in death you are guilty of a misdemeanor, and if you commit a serious violation— those with a high chance of death or serious physical harm—you are subject to a maximum civil penalty of only $7,000. This could change significantly should HR 2067 become law.
Known as Protecting America’s Workers Act (PAWA), HR 2067 and the related senate bill S.1580 were designed to provide OSHA with significant new tools to improve workplace health and safety. Included were higher penalties, enhanced enforcement, and victims’ rights. Highlights of the legislation included:
- Increased maximum civil penalties from $70,000 to $250,000 for willful violations and increased criminal penalty from six months’ imprisonment to ten years (for willful violations resulting in death).
- Expanded OSHA coverage for millions of workers that are currently unprotected, such as state/municipal employees, airline and railroad workers.
- Expanded protection for whistle blowers to provide a 180- day statute of limitations.
- Provide additional workers’ rights such as refusal to perform hazardous work and private right of action for workers and families if OSHA does not prosecute.
- Prohibits employers from discouraging reporting of work related injuries and illnesses by employees.6
Unfortunately, both the bills have been referred to committee. However, while the PAWA is debated, OSHA took action recently to crack down on employers that repeatedly ignore the law and endanger workers. The new Severe Violator Enforcement Program (SVEP) focuses OSHA enforcement activity on targeted work sites with histories of OSHA violations.7 SVEP includes more intense examinations of employer practices, increased inspections, and follow-up inspections as well as inspections of other work sites under the same employer where similar hazards and deficiencies exist.
In addition to SVEP,OSHA issued revised penalty policies which allow increased potential fines and expanded the time frame for employer history of violations from three years to five years. The new directive places a gravity-based penalty structure in force but with reductions available for a clean history, number of employees, and good faith procedures. OSHA issued directive CPL 02-00-149 on June 18, 2010, and both the SVEP and the new penalty structure took effect in late 2010 for most states.8
So, we can see that, with the new OSHA administration and potential new legislation, taking the risk of non-compliance could prove very costly and a bad business decision. And this is not just for heavy industry. Recent serious lab accidents and a couple tragic fatalities have drawn the attention of the Chemical Safety and Hazard Investigation Board.8 CSB chairman, John Bresland, stated “I believe it is time to begin examining these accidents to see if they can be prevented through the kind of rigorous safety management systems that we and others have advocated in industrial settings.” So, it would only take one serious accident to put you under the microscope.
Make sure you catch the second installment of this article in next month’s Forensic Magazine.
- Injuries, Illnesses, and Fatalities. U.S. Department of Labor, Bureau of Labor Statistics. Washington, D.C. 2008 http://www.bls.gov/iif/
- A Dangerous Business. Lowell Bergman & David Rummel and Linden MacIntyre. Public Broadcasting Service, Frontline. January 2003.
- Sixteen Deaths per Day. Brave New Foundation. Culver City, CA. 2009 http://16deathsperday.com/
- OSHA: Beyond the Politics. David Weil. Public Broadcasting Service, Frontline. January 2003. http://www.pbs.org/wgbh/pages/frontline/shows/workplace/osha/weil.html
- Remarks to joint meeting of ASSE and AIHA. David Michaels, Assistant Secretary of Labor, OSHA.Washington, D.C. March, 2010. https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=SPEECHES&p_id=2143
- Testimony of David Michaels before the Subcommittee on Workforce Protections. David Michaels, Assistant Secretary of Labor, OSHA.Washington, D.C. March 2010 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=TESTIMONIES&p_id=1062
- News Release: U.S. Department of Labor’s OSHA takes action to protect America’s workers with severe violator program and increased penalties. U.S. Department of Labor, Occupational Safety and Health Administration.Washington, D.C. April 2010 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=17544
- Federal Program Change Summary Report: Severe Violator Enforcement Program (SVEP). U.S. Department of Labor, Occupational Safety and Health Administration.Washington, D.C. April 2011. http://www.osha.gov/dcsp/osp/standards_fpc/fpc_cpl_02_00 _149.html
Vince McLeod is an American Board of Industrial Hygiene Certified Industrial Hygienist and the senior IH with the University of Florida’s Environmental Health and Safety Division.He has 22 years of experience in all facets of occupational health and safety and specializes in conducting exposure assessments and health hazard evaluations.