For those of you who missed it, the House Education and Workforce Committee held a hearing last week titled “Reclaiming OSHA’s Mission: Ensuring Safety Without Overreach,” at which I testified. Here is a short summary of some of the “high” points.
Two years ago, after the last OSHA hearing by the Democrats before the Republicans took the House majority, I predicted that future Republican-led OSHA hearings would
most likely focus on how unelected pasty-faced socialist bureaucrats in gestapo-like agencies like OSHA are oppressing small businesses and encouraging forced unionization by enforcing the law, instead of just cooperating with employers to make their workplaces even safer than they already are, because no one — no one! — cares about their workers team members more than their employers who treat them like family and would keep their workplaces much safer if they didn’t have to waste money on unfair penalties, complying with costly, ineffective, one-size-fits-all, job-killing regulations and fighting legal battles against illegal searches and seizures by jack-booted OSHA inspectors who are trying to wreck capitalism and usher in a socialist dictatorship.
They have not disappointed.
As Illinois Republican Congresswoman Mary Miller helpfully explained at the hearing, “our mission is to protect workers not just from hazards, but also from the crushing weight of Washington’s failed bureaucratic overreach.”
Remember NIOSH?
While the hearing was about OSHA’s mission, the operations of the National Institute for Occupational Safety and Health (NIOSH) are crucial to OSHA’s mission. The hearing provided the first opportunity in the US Congress (aside from HHS Secretary Kennedy’s budget hearings) to discuss the devastating staffing cuts at NIOSH and the impact those cuts will have on OSHA and worker safety and health. I was able to raise those issues in my testimony Democrats also raised the NIOSH issues in their opening statements and questions.
Unsurprisingly, Republicans were silent about NIOSH.
Baby It’s Hot Outside (and Inside)
Most of the hearing was an exercise in trashing OSHA’s proposed heat standard and there to assist were Felicia Watson, Senior Counsel from union-busting law firm Littler Mendelson, as well as Jake Parson, a construction executive testifying on behalf of the National Association of Manufacturers.
Of course the Republican witnesses weren’t arguing that any worker should die from heat stroke. Everyone wants to protect workers against heat. But they want to be left alone to figure it out for themselves without OSHA butting in to tell them how to do it.
The most repeated phrase relating to the heat standard was that it is a “one size fit all” proposal.
“One Size Fits All” (OSFA) is the kind of meaningless one-size-fits-all phrase that Republicans and the business community have used for every OSHA standard ever proposed.
“One Size Fits All” is the kind of meaningless one-size-fits-all phrase that Republicans and the business community has used for every OSHA standard ever proposed.
Why would the OSHA heat standard allegedly be “one size fits all?”
Because, according to Mr. Parson, it doesn’t take into account differences in geographic climates (like Maine vs. Texas) and doesn’t take into account different job functions — like construction vs. agriculture, or indoor vs. outdoor.
Indiana Republican Congressman Mark Messmer argued that “The Biden administration ignored calls from employers to consider that climate varies from region to region. What may be considered an extreme temperature in one part of the country would be normal in another.”
According to Ms. Watson, “I’ve talked to employers in New Mexico that say 80 degrees is a great day to build, it’s perfect weather, and you might have something completely different in Florida. So, heat triggers are difficult.”
Mr. Parson noted that “the challenges in Texas are different than the challenges in Maine, and the geographies are different. The employees are different, and they’re used to working in different climates, and so having a standard that says this fits everybody and is going to work for everybody makes no sense.”
The employees are different?
Well, that’s all news to me (and anyone who understands human biology.)
Apparently, according to these witnesses, the human body somehow reacts differently to high temperatures in Texas than it does in Maine. Maybe Texans are just tougher or have evolved differently than weaker humans in Maine.
Or maybe workers in hot states don’t need acclimatization because it’s frequently hot in Texas or Arizona, but only rarely really hot in Maine or Alaska. So, Texas workers are more likely to come pre-acclimated.
This is actually a good point. If a Texas construction worker quits one employer and starts with another the next week, why should he have to go through the re-acclimatization period again? The answer is, they don’t. Paragraph (e)(7)(B)(iii) of the proposal states that “The requirements of paragraphs (e)(7)(i) and (ii) [acclimatization] do not apply if the employer can demonstrate the employee consistently worked under the same or similar conditions as the employer’s working conditions within the prior 14 days.”
And what about a workplace in a part of the country where the temperature never gets above 70? Well, Paragraph (a)(2)(i) of the proposal exempts “Work activities for which there is no reasonable expectation of exposure at or above the initial heat trigger.”
Do you still have to comply with this burdensome standard if all of your employees are doing indoor work where there’s air conditioning? No. Section (a)(2)(iv) exempts “Work activities performed in indoor work areas or vehicles where air-conditioning consistently keeps the ambient temperature below 80°F.”
At least Democratic representative Greg Casar (who represents the very hot city of Austin, Texas) was able to get Ms. Watson and Mr. Parson to admit that forcing employees to work “in 90 degree heat, or 95 degree heat, or 100 degree heat for four or five hours without being allowed to come off the scaffold, or without being allowed to take a water break” should be prohibited.
So, there was that.
Ignorant Workers
Ms. Watson is also concerned that ignorant workers wouldn’t know what the word “acclimatization” means or how to pronounce it, which would somehow mean their employer wouldn’t be able to comply with the complicated standard. “How do you say it, what does it mean? ….We need to use terms that are simple and clear cut.”
Or maybe workers just need training about all of these complex concepts.
Which the proposed standard also requires. (I spent 16 years training workers about far more complex topics than acclimatization when I was working for AFSCME. Somehow they seemed to understand all that stuff even though many of them were sanitation workers, wastewater treatment plant workers and public works employees who had never been to college or law school.)
Small Business Deception?
Ms. Watson also argued that despite language in the proposal exempting small employers from having to compile a written heat program, they are not REALLY exempted from a written program because with a verbal plan small employers can’t demonstrate compliance with all the requirements of the standard. They would effectively need a written plan to prove to OSHA that they are in compliance.
Is this really a problem? No. Most OSHA standards don’t require written programs, yet somehow OSHA inspectors manage to figure out if there have been violations. How? Using their eyes, checking records and interviewing workers.
OSHA’s Field Operations Manual, the bible for OSHA inspectors, states that “Interviews provide an opportunity for employees to supply valuable factual information concerning hazardous conditions, including information on how long workplace conditions have existed, the number and extent of employee exposure(s) to a hazardous condition, and the actions of management regarding correction of a hazardous condition.”
And then the attempted “gotcha!” Ms. Watson noted that the standard requires the written program to be posted (it doesn’t), so how would small employers comply with that (non-existent) requirement, if they don’t have a written program? Gotcha! Right?
Not quite. If you aren’t required to do something, you aren’t required to post the thing that you’re not required to do. Ms. Watson’s whole small business discussion falls under a technical legal definition known as “making shit up.” (I didn’t even need a law degree for that.)
Performance vs. Specification
What the employer representatives really say they want is a “performance” standard instead of a “specification” standard. Just tell us where you want to go and give us the flexibility to do whatever works in our specific workplaces.
In other words, instead of OSHA requiring that workers get a break every two hours in high temperatures, they should just take a break when needed and drink water when they’re thirsty.
Mr. Parson apparently runs an enlightened company where “When someone needs a break, they’re allowed to take a break.” After all, “We’re not little kids. We don’t need someone telling us everything we have to do.”
And Ms. Watson argued that the standards should just say that workers should take rest breaks in high heat conditions “when they need them, not necessarily every two hours.”
Well that’s nice. But how many workers in the United States are allowed to climb down off the roof whenever they feel like it or trek out of the tomato fields to go find some shade, take a break and find something cool to drink? Not everyone works for such enlightened employers as Mr. Parson’s.
And does a worker always know when a rest break is “needed?” One of the major symptoms of heat illness is confusion. By the time a break or water are “needed,” it may be too late. Just ask Ronald Silver‘s family.
It Wasn’t All Bad
One bright part of the hearing came when arch-conservative Republican Congressman Glenn Grothman from Wisconsin told me that he was “kind of surprised that OSHA would not apparently do an investigation” on a small farm in his district where 19-year-old Mitchell McDaniel was killed in an auger.
The problem is that language that Congress has put into OSHA’s appropriations bill every year since the 1970s prohibits OSHA from inspecting or citing any farm with ten or fewer employees — even in the case of multiple severe injuries or deaths. It was written allegedly to protect small family farms from intrusion by jack-booted OSHA thugs. But the small farm exemption had nothing to do with “family.” Family members on farms are not covered by OSHA. It’s perfectly legal for farmers to maim and kill kids as long as the kids are their own kids.
Unfortunately, thanks to Congress, it’s also perfectly legal to kill other peoples’ kids (or parents) as long as the deed is done on a small farm.
It’s perfectly legal for farmers to maim and kill kids as long as the kids are their own kids. Unfortunately, thanks to Congress, it’s also perfectly legal to kill other peoples’ kids (or parents) as long as the deed is done on a small farm.
Mitchell’s mother, Stacy Sebald, has been lobbying Grothman to get rid the small farm exemption. I know Stacy. I had lunch with her a few weeks ago when she was in town for Workers Memorial Day. She’s is a fierce fighter against the small farm exemption. She knows the cost.
And she’s made inroads with Grothman who was visibly upset about this injustice when asking me about it in the hearing. (1:18:41)
Grothman: “If it was a little bakery with five employees, OSHA could get involved?
Barab: If somebody got killed in a bakery with five employees, OSHA could — would — definitely get involved.
Grothman: can you think of ay philosophical reason why if somebody dies, let along becoming a paraplegic for the rest of their life, if somebody dies under the current law, we just apparently don’t…
Barab: I think we’re dealing with the power of the agriculture industry and the so-called sanctity of of the small farm. This is kind of a myth that’s been created, and it’s been on the books since the 1970s. It makes no sense and workers are dying because of it.
Will Grothman follow through with trying to get rid of the small farm exemption? Will he get enough Republican allies? We shall see. I’m not holding my breath, but I commend the Congressman for trying.
Walkaround and Instance-by-Instance
The other favorite targets of the Republicans were OSHA’s walkaround policy and OSHA’s new “instance by instance” policy.
Confined Space readers should be familiar with the debate around walkaround policy which allows non-union workers to choose their own walkaround representative. I won’t go into it all again here. Nothing new was raised, and as I said in responding to a question, all of the Republican arguments are red herrings.
OSHA’s revised “instance-by-instance” (IBI) policy also came up.
For those of you who don’t remember, I described in 2023 how the IBI helps address the problem of OSHA’s low penalties:
Since the late 1980s, OSHA has had a way to multiply those penalties in extreme (or “egregious”) cases. Normally, exposing 2 workers or 100 workers to the same hazard would result in a single $15,625 serious violation or $156,250 willful violation (if it wasn’t negotiated down for a variety of reasons.) But in 1990 (the George H.W. Bush administration), OSHA issued its “instance by instance” (IBI) enforcement policy which allowed the agency, in especially egregious situations, to cite the same penalty for each worker exposed to a hazard.
So, if 5 workers were found down inside an illegal 10-foot deep trench — and there were grounds for a willful violation — instead of a $156,250 penalty, the total penalty could be $781,250 (5 x $156,250). OSHA explained in 1990 that “The Act intends that this incentive be directed not only to an inspected employer but also to any employer who has hazards and violations of standards or regulations.”
And the IBI directive added that “The large proposed penalties that accompany violation-by-violation citations are not, therefore, primarily punitive nor exclusively directed at individual sites or workplaces; they serve a public policy purpose; namely, to increase the impact of OSHA’s limited enforcement resources.”
But the original policy only applied to “willful” violations. The new policy expands that to certain “serious” violations.
Ms. Watson had an issue with that, using the notorious heat proposal as an example of how the new policy could destroy innocent employers:
“Let’s say that rule goes into effect as proposed and requires the employer to supply 32 ounces of suitably cool water per employee per hour. If employees run out of water part way through their shift, but no one tells management, the employer could be cited for each violation. Meaning that it could receive a separate citation for failing to provide water for each employee on that shift. If the employer had ten (10) employees on the worksite, the employer would receive 10 citations for failure to provide adequate water in violation of the regulation. The employer could also be cited for failing to provide suitably cool water for those same 10 employees, leaving the employer with 20 citations. Even though the employer was not aware the water had run out. The possibilities of these type of situations occurring are endless.”
She’s also wrong that recordkeeping is “just a paperwork issue,” and not a safety issue. Accurate recordkeeping provides important information that enables employers, workers, OSHA and researchers to identify and prevent workplace injuries and illnesses. Accurate records allow employers to improve safety programs before someone gets hurt or killed. And accurate records provide information so that OSHA inspectors know what to look for and what industries to concentrate on.
Now, sorry if I sound a bit snarky, but I’ve testified with Ms. Watson at a similar hearing last summer. She’s a very nice person and obviously very smart, working for a large prestigious law firm and all. But it’s also clear that she either has not read OSHA’s new instance-by-instance policy (or the heat proposal), or maybe had read them, but she just assumes that no one else has read them, so she can get away with inaccurate statements. These statements go beyond just setting up a straw man. Whatever the reason, there is no excuse for such misinformation and unsupported scare tactics at a Congressional hearing.
Good Standards and Bad Standards
Finally, like the last OSHA hearing before this committee, the committee heard a representative of the Tree Care Industry Association, Ben Tresselt, arguing for OSHA to issue a standard covering the tree care industry. I’ve already explained why the TCIA wants a standard. But for the Republicans, the tree care standard provides a convenient means to show that they really aren’t totally anti-OSHA and anti-regulation. If only OSHA would just work on this standard and not those other worthless standards like heat, which, as Congresswoman Miller tried to explain, is “just a mandate designed to appease climate change activists.”
Conclusion
So those are the highlights. If you have an hour and a half, watch it. If you’re into workplace safety and health, you should find it entertaining — and infuriating. (You can also read all of the written testimony here. Most of it — except mine — is mercifully short.)
But was it more than just entertainment? Some people ask me what the point is of these hearings? Why do I bother to testify? I’m not going to change any of the Republicans’ minds.
Well, to a certain extent that’s true. I don’t think I changed any minds. But I did address Rep. Grothman’s concern about the small farm exemption. Maybe that will pay off down the road. And I was able to raise the problems at NIOSH and respond to some of the same old Republican attacks on OSHA’s heat standard. Maybe some people got educated. Maybe something good will come out of it.
Anyway, the hearing was happening and someone needed to push back against the Republican anti-worker ideology.
It’s a dirty job, but someone has to do it.
Addendum
According to the Committee Republican summary of the hearing:
Yet Democrats continued to push for more top-down policies that fail to meet industry needs. Mr. Jordan Barab, the Democrat-invited witness and Former Deputy Assistant Secretary of OSHA, used his opening statement to tell Committee Members, “I will take issue with the title of this hearing. OSHA’s problem is not overreach, but underreach.” Because, of course, Democrats think they know better than job creators. Sadly, Democrats used today’s hearing to push a one-size-fits-all regulatory agenda that fails to incorporate the needs of job creators who know how to keep their employees safe.
Bottom line: Republicans want all Americans to have a healthy job environment where both workers and job creators can flourish.
I worked in a performance standard world (DOD). Honestly the employers who think OSHA Standards are too onerous, would HATE performance standards. They’d have to lay out what they will be doing to cut risks and be able to prove their risk mitigation efforts actually work. Then they’d have to continually review and improve on those efforts. (Only using PPE and telling the employees to be safe would no longer cut it.)
I’d love to see OSHA add a required performance standard component like MIL-STD 882 to workplace safety.
Thank you very much Jordan for your continuous support and helping to get Mitchell’s story out there. It means the world to me that you and others continue to stand up for what’s right and help to make workplaces safer!!
Good going, Jordan. When I read Educated, I thought it was so awful that the father in that book did not care if his own children were maimed or killled. I remember reading about the horrible fires in sewing rooms where no one was allowed to leave, people lying to the Radium Girls till they were riddled with agonizing bone cancer, the nicotine industry, Monsanto, the plastic bottle industry…. Unions were important in preventing that to continue. My union gave us safety classes and taught ergonomic safety. In a world where money is more important than human life…. That is the lead line to a movie about the end of the world.
And thank goodness you do the job so well and so often Jordan –
Jordan – thanks for continuing to testify and present information that is needed to protect workers.
My question is …. So it is ok to advocate for a national standard to protect tree workers from hazards, but a national standard for protection from heat is bad?
You have an actual business association lobbying for a tree standard (to eliminate its low-road competitors), whereas a heat standard will mean business failure, mass unemployment and the end of Western Civilization as we know it.