Does One-Size-Fit-All?

At last month’s House hearing on OSHA standards we constantly heard the tired refrain that OSHA standards are a “one-size-fits-all” solution that ignores the variations between different types of workplaces, different parts of the country, different size employers and provide a strait jacket for employers with no flexibility.

Witness Felicia Watson, a Senior Counsel at the Littler Mendelson law firm, complained in her testimony about OSHA’s proposed heat standard that “OSHA apparently ignored repeated concerns expressed through written comments and during stakeholder meetings cautioning the Agency against adopting a one-size-fits-all approach to the rulemaking. One size does not fit all.”

And later testified that “Ultimately OSHA has developed a prescriptive rule that takes a one-size-fits all approach, and despite its assurances to the contrary, allows little flexibility for employers moving forward.”

Politicians from NY representative (and House Republican Conference Chair) Elise Stefanik to North Carolina Labor Commissioner candidate Luke Farley complain about OSHA’s “one-size-fits-all” standards.

We have heard this sad old complaint about every OSHA standard since the agency was created in 1971. But it is just wrong.  It is an old business talking point, but it has been an effective one, which is why they are still using it.

Here is what is so wrong with that argument.

OSHA standards are bare minimums

First, OSHA standards are bare minimums.  OSHA has rarely issued standards that were sufficiently protective.  In most cases, labor unions have sued the agency to force them to issue a more protective standard (as happened for example with asbestos and silica).

We have heard this tired old complaint about every OSHA standard since the agency was created in 1971. But it is just wrong.

OSHA standards are never as detailed and specific and proscriptive as voluntary standards (e.g. ANSI standards).  By the time they get issued, many if not most employers are already complying with them or going above and beyond (and the best employers are often doing much more as they recognize the inadequacy of the rules).

While standards are supposed to protect all workers from “material health impairment” even if exposed over a working lifetime, they generally fall far short as a result of decades of court decisions.  The Supreme Court’s 1980 Benzene Decision set a standard of 1 injury/illness per 1,000, which is much lower standard of protection than the levels of protection afforded from environmental hazards.

OSHA standards are programmatic

Second, most OSHA standards are programmatic.  They require achieving an exposure level or other protective measures, but do not specify only one way to get there. OSHA generally requires each employer to develop a prevention program appropriate to their individual business, as long as they all include the basic elements.   Employers have flexibility about how to reach that level of exposure, by substitution (with safer chemicals or methods), engineering controls (ventilation), administrative controls (job rotation) or, in some cases, personal protective equipment (PPE).

For example, to comply with the proposed heat stress rule, employers could start work earlier in the day when it is cooler and probably below the trigger level. Employers in cooler parts of the country will reach OSHA’s trigger temperature fare less frequently than an employer in hotter areas. A heat prevention program for a farm will look different than a program for a warehouse — but all will require the basic elements — water, rest and, where appropriate, shade or air conditioning – if the trigger threshold is met.

OSHA enforcement offers flexibility

Third, OSHA enforcement offers flexibility.  If OSHA does inspect a workplace (and this is a rare occurrence given how few inspectors OSHA has) and finds violations, there often is a settlement agreement where the employer offers to make improvements to meet the standard or some equivalent level of protection.  Employers are often given a significant amount of time to come into compliance and can even challenge the “abatement period” to get an extension.  Citations are often reclassified or the fine reduced to make the penalty less onerous.

Small businesses often get a break

Fourth, small businesses often get a break.  OSHA is required to consider the size of a business when considering the penalty.  OSHA is restricted by Congress in how and when they can inspect small businesses. Many are exempt from inspections, like small family farms Furthermore, OSHA’s Onsite Consultation Program provides small businesses with the opportunity to have an “inspection” from state consultants without risk of a citation. So in reality, they have a lot of flexibility.

One-size-fits-all is a fantasy that business has pulled out time and again to paint OSHA standards as rigid and inflexible

The human body responds the same way regardless of where the work is done

Fifth, while there is some regional variation in hazards, the human body responds the same way regardless of where the work is done.  The heat standard, for example, is measured accounting for both temperature and humidity, so even though the southwest is hotter and less humid, the trigger does account for regional differences.  Measuring heat impact by using the Wet Bulb Globe Temperature (WBGT) instead would take regional variation into account even more as it also measures radiant heat (direct sunlight) and wind velocity.

Most employers like standards

Lastly, while employers often complain about specifications in standards (telling them exactly how to comply, e.g. the height of a guardrail), most employers like to have such standards because they know exactly what they need to do to avoid a citation and protect their employees.  OSHA’s Silica standard recognized this and included an innovative table specifying exactly what controls to use for operations which had known high exposures, but it also gave them flexibility by eliminating monitoring requirements for those operations using those controls.

One-size-fits-all is a fantasy that business has pulled out time and again to paint OSHA standards as rigid and inflexible.  It’s just not true and the sooner we put this one to rest the better for the lives of working people.