The First Hundred Days of Trump’s OSHA: Ain’t Seen Nuthin’ Yet?

Today is Workers Memorial Day, a day set aside around the world to remember those killed on the job — and commit ourselves to fighting to protect workers from preventable death injury and illness on the job.

As the AFL-CIO summed up in its Death on the Job report, 4,836 workers were killed on the job in the United States in 2015 and an estimated 50,000 to 60,000 workers died from occupational diseases. Another 3.7 million work-related injuries and illnesses were reported, but those numbers are significantly under reported, bringing the real total to  7.4 million to 11.1 million injuries each year.

Today also marks Day 99 of Donald Trump’s presidency, so it’s a good time to look closely at what has the administration done to keep worker safe in its first hundred days.

While the White House is in full  anti-worker mode deconstructing the regulatory state, and Congress is on the warpath to remove protections from workers,  OSHA itself has largely been running on auto-pilot under the supervision of the career staff.  With no Secretary of Labor — until yesterday — and no political appointees at OSHA, we haven’t seen much change at OSHA with a few exceptions — yet.

But the agency has not escaped the White House’s obsession to relieve employers of the great burden of protecting workers from tiresome hazards like beryllium and silica exposure as evidenced by delays in implementation and enforcement of these important worker protections

So the question is whether  we just haven’t seen much yet, or “we ain’t seen nuthin’ yet!”

The short answer is that although it’s still early, indications are that workers who punch in to hazardous jobs every day are heading for a hard few years — hard years that many may not survive. The cop on the beat is on its way to transforming itself into the evangelist at the bus stop handing out factsheets for those who happen to be interested.  In a world where workers need more protections against “new” hazards like workplace violence, infectious diseases, combustible dust and the thousands of unregulated new chemicals entering commerce, this administration is instead focusing on removing the few protections that workers currently have and taking away the resources needed to enforce those that remain on the books.  

The question is how many workers will become disabled or die as a result of a business driven anti-worker, anti-regulatory ideology that serves only the interests of low road employers and attorneys who make big bucks representing them? We know that many working people — even union members — voted for the tough-talking guy in the red hat who promised to be the jobs President. What they will witness instead is a tragic betrayal of the promise of good jobs and for many, a painful reminder that they did not vote more  more workplace death and disability.

The question is how many workers will become disabled or die as a result of a business driven anti-protection, anti-regulatory ideology that serves only the interests of low road employers and attorneys who make big bucks representing them?

Before going through some of what we’ve been observing over the past 100 days, we have to make one thing clear.  The Occupational Safety and Health Act, passed on a bipartisan vote in 1970, assures a safe workplace for American workers. And OSHA, despite its small size and tiny budget has been incredibly effective in protecting workers, especially over the past eight years. Instead of going into detail here, read an article in the Huffington Post by former OSHA Chief of Staff Deborah Berkowitz who describes the important role OSHA plays in keeping workers alive and healthy — and what’s at stake in the Trump administration.

The First Hundred Days

Now, let’s take a moment and look back at the first one hundred days of the the Trump Administration.

Leadership: Alexander Acosta was finally confirmed as Secretary of Labor yesterday. After the delay caused by the disastrous nomination and eventual withdrawal of fast-food magnate Andrew Puzder, Acosta is Trump’s last cabinet member to be approved.  (Hilda Solis, on the other hand,  was confirmed as Obama’s Secretary of Labor on February 24, 2009, and I started as Acting Assistant Secretary of OSHA on April 13.) Clearly Acosta’s performance remains to be seen, but neither his history, nor his performance at his confirmation hearing indicate that he will be a strong advocate for working Americans.  He refused to say how he valued OSHA’s protections for silica and other hazards, saying only that the he’d follow the President’s direction and listen to advice from the career staff “as appropriate. He also refused to commit on any other worker protection priorities such as supporting an adequate budget, expanding overtime protections, increasing minimum wage, or affirming the value of unions to our democracy and to a healthy economy,

Meanwhile, no agency at the Department of Labor, including OSHA, has seen a nomination for agency head and OSHA still has not political appointees.   On the bright side, the agency has endorsed Workers Memorial Day and is co-sponsoring a number of events around the country. On the other hand,  OSHA’s Workers Memorial Day Press Release, while noting that “OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance,” significantly left out any reference to OSHA’s main role: enforcement of the law.

Enforcement: From what we can tell at this point, enforcement is continuing. OSHA has issued — and publicized — a large $1.5 million citation against Atlantic Drain,  a plumbing contractor that killed two workers in a trench collapse last year. The agency has continued to issue large violations against some companies, including repeat and willful violations.  OSHA also issued its biggest whistleblower judgement in its history, a $5.4 million action against Wells Fargo. It’s still early to tell what the enforcement and penalty trends are. OSHA has six months to complete investigations and issue citations. So any large investigations that began after January 20 may not result in citations until July.

Press Releases:  The biggest change we’ve seen so far in Trump’s OSHA (and something we’ve discussed repeatedly in this publication)  is the failure of this administration — with one exception — to issue any enforcement-related press releases.   OSHA under all past administrations — Republican and Democrat — have used press releases to publicize its major enforcement cases.  OSHA under the Obama administration  increased the number of press releases issued (lowering the press release threshold from $70,000 to $40,000) and added a bit more “meat” to them to increase their educational value.  OSHA under David Michaels also issued more press releases from smaller “novel” cases — workplace violence, heat stroke, ergonomics — in order to communicate to workers and businesses that these were areas that OSHA was concerned about.

Business associations spent considerable energy condemning Obama’s OSHA for using press releases to “shame” employers, despite the fact that David Michaels did not invent the press release. He did defend strong press releases, however, arguing that they provided a deterrent to employers who didn’t want to see their names besmirched.  Industry attorney’s frequently confirmed that their clients didn’t really care much about OSHA penalties, but were terrified of being mentioned in a press release. The advice they received from the attorneys: Make sure your workplace is safe.

It remains to be seen whether the absence of press releases is because there’s no one home to make decisions about what OSHA’s press release policy will be, or whether the current ban on publicizing enforcement actions will continue after political appointees arrive.

Standards: OSHA is an enforcement agency that issues and enforces standards that safeguard workers’ health and safety   Over the last several years OSHA has issued major standards protecting workers against cancer-causing silica dust, beryllium, crane and derrick hazards, improved chemical hazard communication and issued several regulations that improved recordkeeping practices. All regulatory activity, and OSHA standards in general, are under constant attack by industry associations who argue that they kill jobs and hurt small businesses. Despite the lack of evidence that regulatory protections hurt the economy — and lots of evidence that OSHA standards and their strong enforcement protect workers, the Trump administration and Congress have made regulatory rollbacks a top priority.

Most of the activity rolling back worker protections has come from the White House and Congress.  On January 30, 2017, Trump signed Executive Order 13771, which requires that for every new regulatory protection issued, two existing safeguards must be repealed. AFL-CIO Health and Safety Director Peg Seminario does the math for us. The Executive Order “says for every new protection issued, two protections must be taken off the books. I say 1 minus 2 is a negative number. That means less protection for workers, and that’s not good.”

How this “one in/two out” process will work, or whether it’s in violation of the Occupational Safety and Health Act (as well as other laws) remains to be seen.  And on February 24, Trump signed another Executive Order requiring agencies to review existing regulations and “make recommendations to the agency head regarding their repeal, replacement, or modification.”

Congress has been much more destructive. They used the Congressional Review Act to repeal the Fair Pay and Safe Workplaces rule that would have required federal contractors to report any labor violations and work to correct them. Congress also used the CRA to repeal the Volks Rule which will significantly impede OSHA’s ability to enforce accurate recordkeeping. And the President gladly signed these bills repealing worker protections.

Meanwhile, back at the ranch, OSHA has delayed the enforcement date of the silica standard in construction,“to conduct additional outreach and provide educational materials and guidance for employers,” although employers will still be required to comply with the new standard on schedule. OSHA also delayed the effective date of the Beryllium standard from March 21, 2017, to May 20, 2017. Approaching on July 1 is a new requirement that employers send to OSHA injury and illness information that OSHA would then make public and use for targeting the most dangerous workplaces. The forms for submitting the data were supposed to appear on the OSHA website in February, but the agency has failed to make the forms available with no explanation.

Will the new OSHA leadership advocate for workers or will they just be operatives, acting as puppets for the anti-worker passions of the Chamber of Commerce?

Budget: OSHA has faced a flat budget since 2010, which means, in effect, that the agency has faced a budget cut for seven consecutive years.  Trumps FY 2018 “skinny budget” only mentions OSHA directly in a proposal to eliminate the $10 million Susan Harwood training grant program that provides essential and effective worker training funds to non-profit organization, most of which focus on the most vulnerable workers.  The budget also calls for elimination of the Chemical Safety Board, an independent government agency that has the ability to conduct in-depth, root-cause analysis of chemical disasters and make recommendations to government and the private sector. Meanwhile, the skinny budget also calls for a 22% cut in the overall Department of Labor budget. How much of that will come out of the OSHA budget that is already strained to the breaking point by years of flat funding? What will happen to NIOSH and MSHA? We’ll see more details in next month.

Conclusion

To sum up, what we’ve seen over the first 100 days of this administration is the same old Republican anti-worker, anti-regulatory focus and the same old false and tired myths about how worker protections kill jobs and how enforcement hurts small businesses. We have a President who believes in law and order everywhere except in the workplace (and the environment, and consumer protections, and…..). The deregulatory obsession of this administration, Steve Bannon’s goal of deconstructing the regulatory state (a.k.a. removing protections from workers, communities and the environment), their propensity to support to any industry complaint, no matter how unfounded or self-serving, bode ill for the future of worker protection.

The question, of course, is what we’ll see over the next one hundred or the next one thousand days. We will likely soon see a political appointee arrive at OSHA, and a nomination for Assistant Secretary. Will these be people who are knowledgeable and concerned about worker safety and willing to advocate for workers,  or will they just be operatives, acting as puppets for the anti-worker passions of the Chamber of Commerce?

And the ultimate question is how workers, unions, activists — and everyone who cares about their husbands, wives, friends, kids and parents coming home from work safe, sound and alive at the end of the day — effectively fight to protect the workers of this country?

Stay tuned.

 

Alex Acosta Chemical Safety Board Congressional Review Act Deconstructing the Administrative State Department of Labor OSHA Susan Harwood Worker Training Program Trump Volks Rule Workers Memorial Day

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