Short Stuff: Dispatches from the Front Lines of the Battle for Workplace Safety

OSHA Short StuffKentucky Limits Black Lung Claims Reviews:  We have recently noted that black lung is back with a vengeance after almost being eradicated in the late 1990s. Epidemiologists at the National Institute for Occupational Safety and Health say they’ve identified the largest cluster of advanced black lung disease ever reported. Well, the state of Kentucky is responding — by severely limiting how black lung reviews can be done. A bill recently signed into law in Kentucky limits black lung reviews to just pulmonologists, instead of pulmonologists and radiologists. The problem: there are only six pulmonologists in Kentucky that have the federal certification to read black lung X-rays and four of them routinely are hired by coal companies or their insurers, according to an NPR review of federal black lung cases.  The two remaining pulmonologists have generally assessed X-rays on behalf of coal miners but one is semi-retired and his federal certification expires June 1.

NPR notes that “Among the radiologists excluded by the law is Dr. Brandon Crum, who helped expose the biggest clusters ever documented of complicated black lung, the advanced stage of the fatal disease that strikes coal miners.” Coincidence? I think not.

Mining – Maybe not so safe after all: No one thinks of coal mining as a safe job. But it turns out it may be more dangerous than we thought according to a recent study that found that “nearly two-thirds of the injuries and illnesses that occurred among Illinois miners from 2001 to 2013 were not reported to the Mine Safety and Health Administration.”  According to researchers at the University of Illinois at Chicago 5,653 cases of mining injuries and illness were reported to the Workers Comp Commission in the 13-year period, but researchers found only 1,923 were reported to MSHA. No surprise here, but the researchers found that chronic injuries and illnesses were less likely to be reported than injuries.  Researchers blamed the low reporting on workers’ fear that they would be retaliated against for reporting and/or because they are unfamiliar with the reporting system.

OSHA is Good for You says Michaels in Harvard Business Review: Former OSHA head Dr. David Michaels has written an article for the Harvard Business Review arguing that “Companies can be successful and safe at the same time.” Michaels presents case studies and evidence that for “most successful companies, safety is what the firm does — and what the firm is at its core — not something that is separate from operations.” He argues against blaming the worker for workplace incidents and emphasizes the importance of a safety and health management system, “a systemic process to find and fix workplace hazards before workers are hurt.”

Michaels also notes that successful companies welcome OSHA instead of fearing them: “I was amused to hear an executive at one of the nation’s largest chemical manufacturers tell me that he looked at OSHA inspections as an inexpensive consultant, since our fines were always less than he would have to pay an industrial hygienist to do that same inspection for him.” And there’s evidence that OSHA inspections prevent injuries. “According to researchers David I. Levine and Michael W. Toffel, OSHA’s random inspections of high hazard establishments result in a 9% reduction in injuries that triggered workers’ compensation claims in the four years following the inspection.”

My favorite part is his critique of the line you hear from every employer when someone is killed: “We’re shocked, shocked! Because safety is a priority.” Well, according to Michaels, companies that take safety seriously “understand that safety is not a priority — it is an essential precondition of their work. It is a fundamental component of their operating culture. Safety, ultimately, is at the core of what they do.”

Small Town Succumbs to Cancer Alley: A new land-use plan adopted in 2014 in St. James, Louisiana allowed large land-owners to sell out to chemical companies. The poorer, mostly African-American residents were not able to sell, but they’re now in a position to reap the harvest: increased cancer rates due to leaking chemical storage tanks. The tanks, almost all of which have been found to be leaking, contain chemicals, like benzene that can cause cancer and respiratory illness.

Instead of buying the people out, they are waiting for us to die off,” Keith Hunter told [the reporter] last year. “That is their plan — they don’t have to settle with us.”  Those oil tanks you see, owned by NuStar [Energy] leak benzene, a known carcinogen,” he said, and proceeded to list the names of his neighbors who had recently died of cancer or respiratory disease. “There are only a handful of families back here. There is not going to be anyone back left to settle with.” Hunter died on February 10 following a respiratory illness.

OSHA Short StuffStealing Workers’ Wages? Acosta says no problem: Wage theft is rampant in this country. Terri Gerstein, former Labor Bureau Chief for New York State Attorney General Eric Schneiderman points out in the Huffington Post that “a recent report by the Economic Policy Institute which found that 2.4 million workers lose $8 billion annually in the ten most populous states because of minimum wage violations alone, without accounting for overtime or other laws.”  Although Gerstein argues that “This doesn’t happen because of honest employers who make a calculation error or can’t make payroll for one pay period,” Secretary of Labor Alex Acosta has a new plan to give employers a bye with the new Payroll Audit Independent Determination (PAID) program, which would “enable employers who have underpaid their hard-working employees to simply pay back those wages owed, while avoiding any penalties and damages.” But only for the first offense.

In her years enforcing the law, Gerstein, who is currently an Open Society Foundations Leadership in Government Fellow and a fellow at the Labor and Worklife Program at Harvard Law School, has seen a lot of clearly intentional misconduct when employers figure “it’s cheaper to break the law, the chances of getting caught are slim, and the costs of getting caught are minimal.” The problem with Acosta’s new plan is that

The penalty for wage theft is not just making employees whole by putting the wages back into workers’ pockets, but additional damages and penalties.  These additional costs deter employers from breaking the law, and acknowledge the hardship that workers face when they are unpaid or underpaid, particularly minimum wage and other low-wage workers like janitors, caretakers, carwash workers, construction and garment workers. Waiving penalties eliminates any deterrent impact, and giving up damages is unfair to workers.

A Dollar for your Life? In 2015, federal OSHA reached a corporate-wide settlement with Dollar Tree Stores, Inc. that settled numerous safety and health citations issued against the company involving hazards related to blocked emergency exits, obstructed access to exit routes and electrical equipment and improper material storage. Then OSHA head David Michaels stated that “This settlement agreement demonstrates Dollar Tree’s commitment to improve training, safety procedures and working conditions at its stores nationwide.”

Well, not so much. The Washington Department of Labor and Industries just cited the company for $306,000 in penalties. This was the second time in two years that Washington has cited the company. The willful citations were for not ensuring that exit routes were free of obstructions and for storing merchandise in a way that created a safety hazard. “We are seeing the same safety violations at Dollar Tree stores over and over again in Washington,” said L&I Division of Occupational Safety and Health Assistant Director Anne Soiza. “It’s concerning because this is a national problem as well. Employees, and sometimes customers, are being put at risk even though the fixes to these safety problems are simple.”

Despite the settlement, just in the last year, federal OSHA has issued at least three citations against Dollar Tree: $126,749 against a Bloomington Illinois store, $89,628 against a store in West Berlin, NJ, and a $152,100 citation against a Dollar Tree store in Billings, Montana.

Dentists are Dying. Why? The Centers for Disease Control and Prevention has released a report documenting that dentists are 23 times more likely to contract a rare, progressive lung disease — one that has no cure and few survive. The CDC is not sure what causes the disease,  idiopathic pulmonary fibrosis (IPF). As Yahoo News reports, the statistics for IPF are grim:  “According to the National Heart, Lung, and Blood Institute,there is no cure and just two FDA-approved drug treatments. Although doctors have tried a variety of ways to curb the disease’s effects, including oxygen therapy, none have proven to reverse the damage. In severe cases, patients opt for a lung transplant. But in the absence of a cure, the median survival rate is between 2.5 and 3.5 years.”

The study focused on a Virginia facility where 8 dentists and a dental assistant had contracted the disease over a period of 20 years. It’s not clear what’s causing the disease –possibly chemicals involved in polishing dental appliances and preparing amalgams and impressions without respiratory protection like “silica, polyvinyl siloxane, alginate, and other compounds with known or potential respiratory toxicity.”  The report stated that  “Dental personnel who perform tasks that result in occupational exposures to known respiratory hazards should wear adequate respiratory protection if other controls (e.g., improved ventilation) are not practical or effective. If respiratory protection is used, a written respiratory protection program should be implemented as required by the OSHA Standard, including training, fit testing, and maintenance and use requirements.

Retaliation By Marriage: OSHA has filed a lawsuit against a Chester County, PA hair salon, accusing the business of firing an employee after her husband reportedfiled an OSHA complaint.  According to OSHA, “a plumbing backup in March 2017 exposed employees at the salon to sewage and chemicals. The owners allegedly ignored complaints of nausea and headaches from employees. One of the stylist’s husbands reported the issue to the Occupational Safety and Health Administration. When the owners found out about the husband’s actions, they terminated the stylist’s employment.”

Paragraph 11(c) of the Occupational Safety and Health Act prohibits employers from retaliating against workers for exercising their health and safety rights. OSHA was not amused: “The actions of the salon owners to determine who notified OSHA and the termination of the employee violated the law,” said OSHA’s Acting Regional Administrator Michael Rivera. “All employees have the right to report workplace safety or health hazards without fear of retaliation from their employer.”

How Many Times Can You Break the Law and Endanger Workers Before You Go To Jail? As the San Marcos Corridor News observes, the answer is pretty much forever, as long as you don’t lie to an OSHA official, or kill a worker and receive a willful citation.   Robert Box notes in a column that OSHA just cited a Marietta, Georgia based roofing contractor, Jose A. Serrato, for exposing workers to dangerous fall hazards — for the seventh time in 5 years, and the sixth repeat violation.  The total penalty this time was $133,604, including $129,336 for a willful violation.   As Box correctly observes, “So, as long as a repeat-offending employer does not knowingly make false statements to OSHA and does not have a worker die from a willful violation of a safety standard, the company can seemingly continue to write checks and carry on with business as usual.”

And Who Is Going to Jail? Robert Box may be pleased to know that Katie Tracy, a policy analyst at the Center for Progressive Reform, has developed a manual to help workplace safety activists push for criminal charge for worker deaths and injuries. And she’s even put together a “database that catalogues state criminal prosecutions against corporations and individuals whose actions caused a worker’s death or injury,” the first centralized spot for finding these cases. There are currently close to 90 cases in the database, stretching all the way back to the Triangle Shirtwaist fire in 1911.  According to Tracy, the majority of the fatality cases involve trench collapses.

Tracy notes that we’re seeing much more aggressive local and state prosecutions “because federal OSHA lacks critical support to adequately enforce the Occupational Safety and Health Act.”  For example, “New York has recently undertaken an effort to develop what they are calling their construction fraud task force. They have been pursuing these cases quite aggressively.  All five of the boroughs in New York City are involved with the task force.”

The Stress Is Killing Me! Literally: Stanford professor Jeffrey Pfeffer says that workplace stress, caused by such factor as layoffs, job insecurity, toxic cultures, not having health insurance,the absence of job control and long hours are killing more than 120,000 deaths a year and account for roughly 5 to 8 percent of annual health care costs. And the solution is not more workplace wellness programs, health risk assessments, diet programs, yoga classes and smoking cessation programs. The solution is prevention, changing the underlying work conditions. “If I change the workplace so you didn’t do that stuff in the first place, you wouldn’t need a wellness program.”

 

 

Alex Acosta Criminal Prosecution Mine Safety MSHA Short Stuff Wage and Hour Division workplace safety and health programs

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