Public Citizen 40th Anniversary Speakers Series: Remarks by Dr. David Michaels

Remarks by Dr. David Michaels

Public Citizen
40^th Anniversary Speakers Series
Washington DC
Tuesday, January 18, 2011

Source: OSHA

Granting Basic Rights to American Workers

I come before you today, just one day after this nation celebrated Martin Luther King's birthday. Dr. King lived and died to ensure that all women and men in this country were able to realize the right of freedom and equal opportunity.

Dr. King was gunned down almost 43 years ago, leading a strike of garbage collectors in Memphis , Tennessee . That strike was sparked by the death of two of their co-workers, Echol Cole and Robert Walker, who were crushed to death in a trash compacter.

It was not until three years after the death of Dr. King that workers in this country were granted another basic right: The right to a safe workplace. The Occupational Safety and Health Act was signed by President Nixon on December 30, 1970 , and the Occupational Safety and Health Administration was born on April 28, 1971 .

Before that date, although some states had decent worker protection laws, most workers in this country had no right to demand a safer workplace. Instead they were told they always had a choice: They could continue to work under dangerous conditions, risking their lives, or they could move on to another job.

Before OSHA, when a worker was killed on the job, maybe there was an investigation, maybe there wasn't. When a worker died of an occupational disease, often many years after exposure, it was just one of those unfortunate things that workers and their families had to live with.

It wasn't until ten years later that workers in this country gained the right to know what chemicals they were working with, the hazards of those chemicals, and how to protect themselves.

OSHA at 40

Four decades after the signing of the Act, OSHA is making a difference in the lives of millions of workers.

Worker deaths in America are down — from perhaps 14,000 in 1970 to 4,400 in 2009 — in a workforce that has doubled in size.

Injuries and illnesses are down — from 10.9 incidents per 100 workers in 1972 to less than 4 per 100 in 2009.

Some of this decline was due to the shift of our economy from manufacturing to service industries. But, clearly, much of our progress is due to tougher government standards and greater awareness of workplace safety practices brought about by OSHA.

In the late 1980s, OSHA enacted a standard to protect workers in grain handling facilities from combustible dust explosions. Since then, grain explosions have declined 42 percent, worker injuries dropped 60 percent, and worker deaths fell 70 percent.

OSHA's 1978 Cotton Dust standard drove down rates of brown lung disease among textile workers from 12 percent to 1 percent.

Since we began, worker exposure to asbestos, lead and benzene have been dramatically reduced, and in the last decade new standards have helped shield healthcare workers from needlestick hazards and bloodborne pathogens.

The clear impact of OSHA can be seen on a daily basis. Recently, in Secaucus, New Jersey, a 25-year-old worker was doing repairs high up on an outside wall of a residential tower when he fell — but he was saved from striking the ground by the safety harness he was wearing. He was shaken up and bruised, but he's alive.

Many lives have been saved and many more people live to see and enjoy their retirement because workplace safety and health standards have been instituted in America .

Preventable Deaths

Still: While worker deaths, injuries and illnesses are far lower today than 40 years ago, they're not low enough. There is still much work to be done.

This country's conscience was rocked recently with the death of 11 workers on the Deepwater Horizon oil platform, and several years before by the death of 12 workers at the Sago coal mine in West Virginia .

Yet 12 workers are killed on the job every single day in this country. If a Deepwater Horizon or a Sago-like disaster was reported in the news every day, there would be a public outcry. But because these 4,400 deaths a year usually happen one at a time, in towns large and small all across the country, they rarely make headlines.

Even less noted are the 4 million more who suffer a serious job-related injury, and tens of thousands more suffer from serious job-related illnesses.

What's most important, most of these deaths and injuries are preventable - preventable by basic safety precautions such as providing a safety harness and line to prevent workers from falling off a roof, shoring up a trench to make sure it doesn't collapse, or guarding a machine so a worker doesn't get his hand cut off.

Challenges Ahead

Meanwhile, 40 years after private sector workers in this country were given the right to a safe workplace, more than 8 million public employees in this country still do not enjoy that basic human right. In half the states in this country, you're not breaking any law to send a worker down into an unprotected 20-foot-deep trench without shoring, or up on a roof without fall protection.

OSHA is a small agency. Federal OSHA has only around 1,200 inspectors to cover 29 states. OSHA funded state plans have around the same, so there are less than 2,500 inspectors to cover 7.5 million workplaces employing more than 130 million workers.

This means that OSHA must carefully target its efforts and leverage it resources. One way we do that is through targeted inspections and penalties. Even there, we are hobbled.

The maximum fine for a serious violation is $7,000 — a small fraction of those imposed by other federal agencies. By comparison, the top penalty for violating the South Pacific Tuna Act is $350,000.

Similarly, the maximum criminal penalty for a worker death associated with a willful violation of an OSHA standard is a misdemeanor with up to six months in jail; yet harassing a wild burro on federal land is a felony with a sentence of up to a year.

In 2001 at a Delaware oil refinery, a tank of sulfuric acid exploded, killing a worker named Jeff Davis. His body literally dissolved in the acid. The OSHA penalty was only $175,000. Yet, in the same incident, the death of thousands of fish and crabs led to an EPA Clean Water Act citation of $10 million.

How can we tell Jeff Davis' wife and his five children that the penalty for killing fish and crabs is many times higher than the penalty for killing their husband and father?

We have other challenges as well. Our vitally important whistleblower program is hobbled by a weak law and lack of resources.

Now, I'm not betraying any secrets when I tell you that despite the progress we've made and despite these problems, this small agency is under attack. In fact, this agency has been under attack since the day it was born. Today, attacks on OSHA are part of attacks on the role of government as a whole.

OSHA enforcement, our critics claim, is counterproductive because it is confrontational, rather than cooperative. Punishing after a fatality is not preventive, they say. OSHA regulations slow the growth of business and are especially hard on small businesses, they say.

Let me say this as clearly as I can: OSHA is not working to kill jobs; we're here to stop jobs from killing workers . We are here to ensure that workers have the tools to keep themselves from getting sick and dying in the workplace, and that employers have the information they need to make their workplaces safe.

Creative Solutions

This administration believes that violations that result in significant penalties are a deterrent to employers who would cut corners on safety. But because our low penalties are set by law and haven't been raised since 1990, we must be creative.

In the last two years under the current administration, OSHA is attempting to increase the deterrence with three strategies: (1) introducing a new targeting program for recalcitrant employers, (2) strengthening our penalty structure, and (3) using all the powers of publicity at hand to expose bad actors in the public arena.

Last year we added more than 100 new inspectors and whistleblower experts, and launched the new Severe Violators Enforcement Program (SVEP). The program targets enforcement to recalcitrant violators who endanger workers by demonstrating indifference to their responsibilities under the law.

Under SVEP, we are rooting out systemic problems that will eventually make a huge difference in the lives of tens of thousands of workers. Currently 89 employers are in SVEP — that is, 89 employers are receiving "special attention" from OSHA.

Last year we also issued a new penalties policy that will result in increased employer fines while maintaining OSHA's policy of reducing penalties for small employers and those acting in good faith. While our maximum penalties are still set by law at a very low level, we can control how and when we allow reductions in our penalties.

Our new administrative changes will reduce the level of reductions to send a stronger message to employers with serious violations that cutting corners on worker safety and health is unacceptable.

Finally, OSHA is using the public spotlight to expose worst violators. We are using our press releases to name employers who have broken the law, expose their failings, and detail hazards uncovered by our inspections. An employer's fear of being publicly identified as a violator of OSHA regulations is a powerful incentive to abate hazards.

Compliance Assistance

But our belief in the value of enforcement does not take away our recognition of the need for cooperative programs and compliance assistance.

In fact, we have sought to increase funding for our small business On-site Consultation Program, which provides free, on-site assistance to small business owners who can't afford to hire a full-time safety person or a consultant. Last year, close to 30,000 small businesses took advantage of this free on-site service.

As a result, no small business in this country should fail to protect its workers simply because it can't afford good safety information or can't understand how to employ safety and health standards.

Giving Workers a Strong Voice

We are also focusing on compliance assistance to workers who do not have ready access to health and safety information. The creators of the OSH Act provided workers a number of rights in the act — the right to request an inspection, the right to receive information, the right to be protected from retaliation.

But the creators of this legislation also understood that the right to a safe workplace would never be fully realized unless workers have the knowledge, tools and security to participate in the process.

The most vulnerable workers in America are immigrant Latino workers. They work in the most dangerous jobs and suffer injuries and deaths at greater levels than their peers. About 12 Latino workers a week — every week, all year long — are killed on the job. Most of these are in construction, but many are injured in the housekeeping industry and in manufacturing.

To find ways to reach out to these vulnerable workers, last spring in Houston we convened the first National Action Summit for Latino Worker Health and Safety.

This two-day summit brought together more than 1,000 participants. We met with workers and representatives from employer associations, labor unions, the faith community, community organizations, the medical community, safety and health professionals, educators, government officials, consulates, the entertainment community and other non-traditional partners.

Many ideas came out of the Houston summit. We are following up in every OSHA region in the country to implement a robust outreach strategy to create partnerships and alliances with neighborhood groups, the faith-based community, and other non-profit organizations.

A recent example of successful collaboration is the LABORAL call center in New York . This was arranged through a partnership with Mexico and the Department of Labor's Wage and Hour Division, and with the cooperation of the local Catholic Migration Office. In this initiative, which also involves the New York State Department of Labor, Area Latino workers may call the toll-free phone number to receive education and guidance about their rights in the workplace, and they make a confidential complaint to OSHA.

When workers are informed and empowered, they are inoculated against rogue employers who seek to exploit them.

Standards

The Occupational Safety and Health Act also obligates OSHA to set standards that will protect workers. Far from impeding business growth in this nation, those standards, and the enforcement of those standards, set a level playing field for all businesses in this country so that employers who are investing in safety are not underbid by unscrupulous ones who are cutting corners on worker safety.

Looking at the last 40 years, it is clear that the agency has had a significant impact on reducing injuries from safety hazards such as trenching and falls, to health hazards such as exposure to cotton dust or asbestos.

When addressing worker exposures to chemical hazards, however, our impact has been more limited. This presents a public health issue that we are committed to addressing in this administration.

The vast majority of OSHA chemical standards were adopted in the first years of OSHA's operation, based on science of the 1950s and '60s. Science has moved on, and today we know that significant danger exists at lower exposure levels than were thought almost a half-century ago. OSHA's chemical standards need to be updated — but the agency faces significant obstacles.

The process for setting standards is set down in the OSH Act with provisions for stakeholder input. It is intentionally complex and slow to allow all potentially affected parties to have a voice in the proceedings.

However, this resource-intensive process also means that OSHA can only establish a few standards at a time, so OSHA is exploring other approaches to address the hazard of numerous toxins in workplaces that can sicken and kill workers. We have been talking to stakeholders and are now reviewing and considering a number of approaches that could be more efficient than the traditional, laborious, lengthy rulemaking process to save workers' lives.

When I speak about "workers' lives," implied in the discussion is the impact on families. When a worker is sickened, injured or killed on the job, the impact on that worker's household is both emotional and financial. The death or disability of a breadwinner robs children of the love and care of a parent. It can plunge a family into crushing debt, dash hopes for sending children to college, and trigger waves of other social and economic problems. This is not the promise of the American Dream.

Injury and Illness Prevention Program

For most of the 20 th century, workplace safety and health reform has been reactionary — the result of a tragedy, such as the wave of reforms following the death of 146 garment workers in the Triangle Factory fire in New York , 100 years ago on March 25.

We are now a decade into a new century, and OSHA's focus must be on preventing tragedies before they happen.

Government can't be the only watchdog for workers; there simply aren't enough inspectors to cover the country. The burden of workplace safety and health must lie with employers. Last year we announced that OSHA is working toward proposing a rule that would require employers to implement an Injury and Illness Prevention Program.

This effort is part of the Department of Labor's new initiative — Plan, Prevent, Protect . It represents the most fundamental change in workplace culture since the passage of the OSH Act.

With this change, employers would be required to take an active approach to ensuring safe and healthful conditions for their workers. There will be no more waiting for a worker to get sick, hurt or killed to address a problem; no waiting for OSHA to show up to do an inspection; no playing a deadly game of "catch me if you can" with the government while risking the lives of workers.

This plan would make it mandatory for employers to develop a plan to find and fix their workplace hazards — and not just the hazards covered by OSHA standards, but all recognized hazards .

Since announcing this regulatory effort almost a year ago, we have held a series of stakeholder meetings and conducted critical research. We are poised to begin a small business review this summer, and we are committed to persuading business owners that this plan is in their best interest.

Injury and Illness Prevention Programs are not new. This approach has been embraced by thousands of employers across the country, and this is similar to standards currently in place in California and several other states.

As we pursue this plan, OSHA will welcome the support of Public Citizen and other stakeholders.

Embracing "Incurable Optimism"

Finally, I want to tell you again what a privilege it is to be speaking here today. This is the first of a number of speeches I will be making for OSHA's 40 th anniversary and it is altogether fitting and proper that this maiden speech take place here.

Public Citizen's related and predecessor organizations were active in advocating for passage of the OSHAct in 1970 and we are grateful you remain of the nation's leading advocates for worker safety and health.

Over the years, Public Citizen has prodded, pushed and occasionally taken legal action to move OSHA in the right direction — advocating stronger worker protections from carcinogens, lead, cadmium and hexavalent chromium in the workplace; and petitioning to reduce work hours for truck drivers and medical residents.

For your advocacy on behalf of working men and women, and courageously demanding the best from government: OSHA is grateful to Public Citizen.

Forty years later, we can look back with pride at the progress we have achieved, and we can feel hope and confidence meeting the challenges that lie ahead.

The road ahead will not be easy. In every direction we face difficult challenges, but I am optimistic.

Tony Mazzocchi, a great pioneer of health and safety in this country, spoke to his friends shortly before he died of cancer. Tony told us that "I am both afflicted with an incurable disease and blessed with an incurable optimism."

I believe:

if we work together to educate workers about the hazards they face and the rights they enjoy;

if we work together to make sure that they are able to exercise those rights;

if we strive to educate the journalists and politicians in this country about the need to protect workers;

if we work together with the responsible employers in this country to develop the management programs and technologies that can overcome workplace hazards;

— then... we will be much closer to realizing the promise that was made to American workers 40 years ago: The simple, basic right to go to work in the morning and come home to your family safe and healthy at the end of the day.