The Salt Lake City Tribune (partnering with The Utah Investigative Journalism Project) published an article last week entitled “Death on the Job: Utah’s worker safety agency rejects ‘heavy-handed’ enforcement,” which, as you can probably tell, addressed a number of serious problem with Utah’s Occupational Safety and Health program (UOSH): no penalties for public employee OSHA citations (even fatalities), inappropriate classification of violations, low fines for private sector violations and other issues.
Among the problems cited were a city employee asphyxiated in a confined sace resulting in no penalty, average fines of $3000 for fatalities (including one fine of only $750 after a fatality caused by failure of the employer to ever inspect a machine), and violations that were downgraded in severity or otherwise improperly classified
The authors blame low fines and lax enforcement on “Utah’s larger pro-business regulatory culture. That’s why it was not uncommon for companies to face minor penalties even for fatalities.” The pro-business culture of the the regulators is not good for workers, especially when combined with the practice of the construction industry where “value has been redefined as the lowest cost,” according to Brandt Goble, head of the Painters Local 77 union. “Value is how cheap can you get it.”
A little background on OSHA state plans:
- Federal OSHA only handles enforcement in about half the states. Twenty-one states (and Puerto Rico) run their own OSHA-approved state plans. Federal OSHA funds up to 50% of these programs and is responsible for ensuring that the state plans are “at least as effective” as federal OSHA.
- Federal OSHA does not cover public employees. That means that workers employed by cities, counties and states have no legal right to a safe workplace even if they work on roads, wastewater treatment plants, hospitals or prisons. The good news is that states, like Utah, that run their own OSHA programs are required to cover public employees. OSHA also has a provision where a federal state can choose to cover its public employees while the Feds cover the private sector. Only six states (and the Virgin Islands) have taken advantage of this option — Connecticut, New York, New Jersey, Illinois and Maine. The bad news is that it’s left to the states whether or not to fine public employers who violate the law. Some do and some don’t. New Jersey, for example, recently cited the City of Ridgewood over $101,000.
- Funding for OSHA state plans has suffered. Funding for state programs in FY 2008 was $89.5 million. That figure rose to over $104 million from FY 2010 to FY 2012, but then fell to $98.7 million during the sequestration year of FY 2013. Despite request for significant increases from the White House, the state plan line item only partially recovered from sequestration, rising to $100.9 million in FY 2016. Although the federal government is only required to provide up to 50% of the state plan budget, many states “overmatch,” using their own funds to provide more than the 50% match. With increasing fiscal problems, however, the number of states overmatching, and the amount of the overmatch have gone down over recent years. All of these budget issues have taken their toll: Ten years ago, state plan states could inspect each workplace once every 62 years. Today that figure is once every 97 years.
State plans have always been a challenge for OSHA. On one hand, some state plans, such as California and and Washington, have standards that are better than federal OSHA’s standard, and some have issued standards that Federal OSHA doesn’t have. CalOSHA, for example, last year issued a standard covering workplace violence in health care institutions. Federal OSHA has just begun rulemaking on workplace violence.
On the other hand, it is administratively and politically difficult for OSHA to oversee 28 state plans with limited tools to influence their behavior. The average penalty for most states is much lower than federal OSHA’s, although they have started to rise. Some states are resisting raising their penalties in accordance with last year’s Congressional mandate to raise OSHA penalties for the first time since 1990. While some states argue that more frequent inspections make up for lower penalties, it’s sometimes hard to understand how a minuscule penalty has any deterrent value no matter how many visits are made to the workplace. (If I was only issued a $5 fine every time I was caught for speeding or illegal parking, it probably wouldn’t deter me much.)
Chris Hill, UOSH’s current acting director, argues that
“Our mission is to make sure every worker goes home safe….We’re not issuing punitive damages on these citations.” UOSH isn’t out to make money off businesses. That’s why the agency keeps fines low, he said.
Hill’s statement ignores the fact that the goal of fines is to deter illegal behavior and hopefully send a message to other employers, not to make money off of businesses.
Federal OSHA during the Obama administration adopted a special focus on ensuring that state plans were “at least as effected as” federal OSHA after a high number of workers were killed on the Las Vegas strip. A special 2009 study of Nevada’s OSHA program found serious problems. Under pressure from federal OSHA, Nevada corrected most of its problems and is in good standing today. But it’s not easy. Every year federal OSHA issues a report on each state OSHA program which can be found here. Serious problems are often identified in these reports. The main tool that OSHA has if a state is not running a program that is “at least as effective as” federal OSHA’ is to take away its state plan, a difficult and lengthy process. Over the last several years federal OSHA adopted a more flexible set of tools, including using the threat to take over some or all of a state’s program if the state refused run an effective program. When OSHA resurrected its 1992 residential fall protection requirements, for example, some states refused to go along. Arizona passed a law enforcing the old, weaker requirements, but pulled back at the last minute after federal OSHA went through the process of taking over its construction sector.
Workplace safety advocates will be watching carefully over the next several years to determine to what extent the new Labor Department and OSHA leadership will continue to insist that the state plans are “at least as effective” as federal OSHA.
Because, as one worker summed it up, according to Goble, the current situation in Utah is: “Good for the boss, bad for me.”