DOL Report on Injury Inequality, Part 2

To continue thoughts on the DOL report on how workers’ compensation creates inequality in workers.

This report is getting quite a bit of attention from various media sources and confirms some of the same items that reports from both PBS and NPR have investigated.

The report goes through a number of ways that the lack of worker safety along with a potentially failing workers’ compensation system can create a disparity among injured workers. The report is summarized very simply as the best approach to workers’ compensation is to prevent worker injuries. If a worker does not get hurt, a workers does not need work comp. The report is put together well, but there are a number of ways OSHA is not as effective as it could be in creating momentum for worker safety.

First, OSHA has an amazing amount of red tape before a new law can be propagated. Do we have a comprehensive combustible dust standard? No. Do we have an ergonomics standard? No. Are the PELs for chemicals inclusive and up to date? No. Is the injury and illness prevention plan (I2P2) ready for use? No. Too many times a safety professional’s hands are tied due to the lack of comprehensive legislation. I was speaking to a fellow regulatory professional one day, and he relayed the story of a manager who felt that OSHA was the “Cadillac” of the safety world. Amazing, right? OSHA is the law. It is the bare minimum standard. OSHA still relies heavily on the general duty clause which has too much room for interpretation.

Second, OSHA is understaffed and inconsistent. What prevents someone from speeding? The idea that there could be a cop around the bend that will catch and fine you for it. Without sufficient coverage of compliance officers, there are businesses that can operate with minimal fear of the local OSHA office. Certainly, OSHA comes to visit when there are significant injuries (see the updates to the reporting law) or complaints. The key factor, though, is that a company has to be honest with the law. If an organization has made the choice to not follow the law, why would they choose to inform their employees of their rights or report correctly when warranted. Certainly, there are very stiff penalties if caught for willfully under reporting. Overall, the best way to catch problems is to have people in the field finding them. Please forgive the oversimplified analogy: If the police want to stop speeding, they do not create a self reporting hotline for speeders.

Third, in my experience, OSHA compliance officers are inconsistent. I have had some really good compliance officers that evaluate my processes and programs find they are functional and move on. I have also had some visit who did nothing but write citations for anything and everything. It was like an egg on the wall theory. Smack it against the wall and see how much sticks. There has got to be consistency in the process. If a compliance officer is judged effective through sheer number of citations, then they will write more citations. What gets measured, gets done. Just to be clear, though, if there is a true violation; it should be cited clearly and consistently. I can accept tough regulations as long as they are enforced consistently. The problem comes with the grey areas of the law or the lack of legal understanding.

Which leads me to my fourth point, the regulations are not user friendly. In someways, I find that perfectly acceptable as companies need people like me to help them comply. On the other hand, it is not easy to find a clear answer to questions. When speaking in terms of worker safety, the topics are not only a broad array but in-depth. When researching a standard, there are many considerations. What does the regulation say? Are there interpretations to read? What was the intent when the law was written? How did public comment change it? Are the references such as NFPA, ANSI, etc.? How has recent citations affected the interpretations of the law? Are there state specific laws? It takes time to implement a process right just in understanding alone.

Worker injuries are devastating. They should be prevented. But, there is more that can be done from an OSHA standpoint to help that accountability, education, and simplification.

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