Bill Introduced to Stop Public Employees’ Deaths

Somewhere close to 100 workers are killed in the workplace every week of the year. It’s a tragically normal thing, some of which I cover every week in the Weekly Toll.

But two deaths in April stood out for me. Because although they were killed in the workplace, there will be no investigation of their deaths, no citations issued, no lessons learned.

Why? Because there a special group of second class citizens with no right to a safe workplace: public employees. Hopefully, this will soon change if a bipartisan group of Congresspersons have their way.

One, Wilbert “Bucky” Adkins, 53, worked for the city of Hinton, West Virginia and was killed in the workplace on April 23. We don’t know what happened.

Jordan Haynesworth, 34, a utility plant senior technician, died in a confined space at the Roberto R. Bustamante Waste Water Treatment Plant in El Paso, Texas on April 30.

Adkins and Haynesworth both worked in states where public employees are not covered by OSHA. Eight million public employees work in the 23 states where government workers have no right to a safe workplace, no right to come home alive and healthy at the end of the work day.  Although investigations are often promised, the “investigations” are generally short affairs where the police department determines no crime was committed, or a confidential insurance company investigation is conducted, but no results are publicly released.

It has now been almost two months since these men died and the press seems to have lost interest after the initial stories. We still know very little of the circumstances that lead to their deaths, except that Haynesworth was killed in a confined space incident. And we are unlikely to learn any more.

Contrast the lack of protections and lack of oversight for public employees in Texas, West Virginia and 21 other states to what’s going on just over the Texas border in New Mexico where public employees are covered by OSHA. Last October, just 200 miles north of El Paso, a Roswell, New Mexico city employee was killed on the job in a trench collapse.  New Mexico OSHA investigated and issued a $637,311 citation against the city of Roswell.

And last year, New Mexico OSHA issued five “willful-serious” and two “serious” violations against the City of Albuquerque for exposing city employees to asbestos. The total penalty was $761,112.

Why are public employees second class citizens?

Why do public employees, working just a few miles apart across an arbitrary state border line have drastically different protections in this country?

We don’t know what killed Adkins, but Haynesworth apparently suffocated in a confined space. The first death I ever investigated at AFSCME was a wastewater treatment plant worker who died in a confined space in Illinois, which at that time did not provide OSHA coverage for the states public workers.  Confined spaces are common in wastewater treatment plants where raw sewage generates deadly hydrogen sulfide.  If the space isn’t ventilated and emergency rescue measures aren’t in place, these spaces can be deadly. OSHA has a very effective confined space standard that requires monitoring, training, confined space permit procedures and and emergency response planning.

But OSHA’s standard can only save lives if the law requires that employers comply with it. None of the articles about Haynesworth’s death mention OSHA’s confined space standard.

So why are public employees legally allowed to get hurt and die in unsafe workplaces when they do the same — or more dangerous work as private sector employees?

Welcome to the weird world of the Occupational Safety and Health Act (OSHAct). The OSHAct, passed by Congress in 1970, required employers to provide a safe workplace for their employees. Employers were required to comply with OSHA standards and face inspections if a worker complained, or someone was hurt or killed in the workplace.

But with a major exception: public employees were not covered by the OSHAct. They have no legal right to a safe workplace, even though many did the exact same work that private sector workers di. Even though state and local government employers have a higher injury and illness rate than private industry workers, including construction, mining and manufacturing workers.

There were two exceptions to the public employee exemption.

First, states were allowed to run their own OSHA programs —  50% funded by federal OSHA — if their programs were “at least as effective” as federal OSHA’s. And those state plans are required to cover public employees in their state.

States were also allowed to adopt “public employee-only plans” where federal OSHA would provide 50% of the funding for those states to cover only their public employees. The feds then continue to cover the private sector in those states.

There are 21 states (and Puerto Rico) that run their own full state plans, and another 6 states (and the Virgin Islands) that have public employee-only plans, leaving 23 states where public employees have no OSHA coverage, no right to come home alive and healthy at the end of the work day. Workers in Washington DC also have no OSHA coverage.*

Is Change Afoot?

All of this can change if the Occupational Safety and Health Act is modified. Last week, Congressmen Chris Deluzio (D-PA) and Brian Fitzpatrick (R-PA) introduced H.R. 8758, the bipartisan Public Service Worker Protection Act, which would bring all of the nation’s public employees under OSHA protection.  The bill contains similar language to the Protecting America’s Workers Act which is introduced every year.

Why do public employees working just a few miles apart, over an arbitrary state border line have drastically different protections in this country?

“No matter where they live, American workers in every sector should have the strong safety standards and protections of OSHA in their workplace,” said Congressman Deluzio.

“Our dedicated public sector workers throughout our country deserve to be safe at work and the robust level of protection that OSHA coverage provides,” said Republican Congressman Fitzpatrick.

The bill was referred to the House Education and Workforce Committee which is unlikely to take any action while Republicans remain in control of the House of Representatives.

What is to be done?

Why haven’t more states passed public employee OSHA laws? If you listen to organizations like the League of Cities, Conference of Mayors and National Association of Counties, it’s because public employers are already doing a wonderful job protecting their employees and they don’t need no stinkin’ law and standards to tell them to do what they’re already doing.

Also, they argue, OSHA coverage would cost too much for strapped government budgets.

Unanswered is the question: How can something you’re allegedly already doing cost too much?

States where public employees can still legally go to their deaths resulting from workplace safety violations that would be illegal if they were private sector employees are Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, Ohio, Pennsylvania, Rhode Island,  South Dakota, Texas, West Virginia, and Wisconsin.

Massachusetts joined the too-small list of public employee OSHA states last year and efforts are currently going on in New Hampshire and  Pennsylvania. The Pennsylvania House has passed a bill providing OSHA coverage to public employees last May by a vote of 116-85 . But there has been no action in the Republican-controlled state Senate. (Color me pessimistic, but I started working with Pennsylvania unions on a public employee OSHA bill in the early 1980’s.)

But it takes more than just introducing a bill to save public employees’ lives. We need to fight for OSHA coverage for public employees.

We’re coming into an election year. Most people don’t even know that the people that deal with their sewage, pick up their garbage, fix their roads, teach their children, protect them against crime, guard their prisoners, put out fires and maintain their parks have no workplace safety protections. Public employees themselves often don’t know they’re not covered by OSHA.

If you live in any of the 23 states where public employees are treated as disposable second-class citizens, raise the issue with the candidates for federal, as well as state office. Ask federal office-seekers if they have cosponsored H.R. 8738, and ask state legislators to pass state legislation that would bring public employees under OSHA protections.  Ask them if they were aware that public employees have no legal workplace safety protections? Ask them if they have a plan to do something about it.

Ask them why not.

*States where public employees can still legally go to their deaths resulting from workplace safety violations that would be illegal if they were private sector employees are Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, Ohio, Pennsylvania, Rhode Island,  South Dakota, Texas, West Virginia, and Wisconsin.