Caution: going to work may still be dangerous to your health

1984

A regulation put in place in November 1983 setting federal standards that require manufactures to label hazardous chemicals and mandate that specified employers provide to their employees education and information on chemicals to which they are exposed is challenged in court by New York, Connecticut, and New Jersey. The states argue that the regulation would preempt more wide-ranging laws in 16 states: The federal rule only applies to employers in the manufacturing industries, whereas the state rules also cover sectors like agriculture, construction, and dry-cleaning. The New York Times reports that the New York Attorney General, Robert Abrams, says “the prospect of [f]ederal pre-emption was particularly distressing because OSHA was incapable of enforcing existing worker protections as a result of staff cuts under the Reagan Administration.”

A few months later, an article in Chemical Week reports that industry groups — from the Chemical Manufacturers Association to the National Paint and Coatings Association — are supporting OSHA’s standard because they say it is too complicated to comply with differing state regulations. They also worry that more stringent reporting requirements will compromise their ability to protect trade secrets. OSHA’s standard exempts employers from naming the substance used if they believe that disclosure jeopardizes their trade secrets.

Unions such as the Oil, Chemical & Atomic Workers have thrown their support in with the states, saying that OSHA’s standard does not only fail to cover all relevant industries but that it does not require employers to provide sufficient information to workers. “The Reagan Administration comes in, announcing that there has been too great a role for federal intervention and that they are going to have the states play a much larger role,” observes George Cohen, a Washington attorney with the law firm representing the Steelworkers in their case against OSHA. “Lo and behold, the states took them up on it, and a series of meaningful laws are passed. Now we’ve got the companies, who rejoiced at the idea of less federal regulation, saying, ‘Rescue us.’”[6]

April 1985

At the hearing on whether to confirm William E. Brock as the Reagan Administration’s new Labor Secretary, Sen. Edward Kennedy (D-Mass.) says that the Reagan administration has slashed OSHA budgets and “effective law enforcement has been brought to a virtual halt.” Kennedy, along with Sen. Howard D. Metzenbaum (D-Ohio), is highly critical of OSHA’s recent track record of inconsistent and inadequate regulation, saying, “As safety and health hazards for American workers proliferated, scarce resources were spent to delay or weaken existing rules and the unfinished list of toxic chemicals in need of regulation grew longer every day.”[7]

May 1985

House Government Operations Committee releases report that says OSHA’s regulation and enforcement of the hazardous waste industry has been “grossly inadequate.” Report finds that very few toxic waste sites were inspected (only 37 of thousands) in 1984. AFL-CIO says that it has been pressuring OSHA to set rules on toxic waste since 1971 and petitioned the administration in 1979. OSHA declines to comment. The New York Times reports “many of the concerns mentioned in the report are similar to those made by the agency’s Congressional critics, mostly Democrats, and organized labor.” The study supports the findings of another study released earlier in the year by the Congressional Office of Technology Assessment, which determined that OSHA inspections are not frequent and that its penalties are too low to provide adequate incentive for industry cooperation.

June 1985

A federal appeals court rules on the right-to-know standard, deciding to uphold OSHA’s authority to preempt state laws but also ordering OSHA to rewrite provisions of the act. Court concludes that OSHA improperly limited the scope of the standard when it only included workers in the manufacturing sector. For several years, OSHA’s standard will preempt state on right-to-know standards only in the manufacturing industry while it develops right-to-know rules for other sectors (those standards are ultimately put in place in 1993). The court also orders OSHA to rewrite the provisions protecting trade secrets, saying that employers must extend confidential information to workers, though they can require that anyone requesting trade secret data sign a confidentiality agreement. Labor groups celebrate the ruling, and business groups say that they, too, are pleased, explaining that it will be much easier for businesses to comply with one federal standard than multiple state ones.[8]

June 1987

A Chicago-based research organization, the National Safe Workplace Institute (NSWI), leaks a draft of a Labor Department inspector general’s report on OSHA. The draft says that the agency’s regulation of job safety suffers from “systematic weakness,” pointing to poor management and to caps on the amount that inspectors can fine offenders. It also reports that the administration lacks both staff and monetary resources to adequately enforce safety standards, noting that for the four million work sites under OSHA’s jurisdiction, the agency had only 1,000 inspectors. The draft also finds that OSHA does not consistently levy fines or issue citations and often reduces penalties after meeting with businesses. Jospeh E. Kinney, director of NSWI, comments, “This report demonstrates that OSHA lacks either the capability or political will to regulate unsafe working conditions.”

August 1987

The New York Times publishes extensive exposé called “Is OSHA Falling Down on the Job?” The paper reports, “Behind the flurry of citations is an agency that, the evidence suggests, is adrift and overwhelmed by its task.” Calling OSHA “slow moving to the point of reaching a complete stall,” it reports that in its 17 years, OSHA has finalized only 18 health and 23 safety rules and that it still lacks standards on dangerous chemicals such as benzene and ethylene oxide gas.

The Times reports that the safety agency’s 1,044 inspectors means that OSHA has nowhere near the capacity needed to be able to inspect the nation’s millions of workplaces, that recent studies have shown that as much as 35 percent of recent workplace deaths were either not reported or not investigated by OSHA staff, and that investigators were “limited by the fact that the law limits the maximum penalty for serious violations at $1,000.” The story notes that in March investigators with the Labor Department had written an urgent interim memo to William Pendergass, secretary of the Labor Department, asking for “immediate coercive action” to properly address employers that have committed violations resulting in repeated employee deaths.

Pendergrass says that OSHA is effective, citing data showing that rates of worker death and illness have declined, though, the report mentions, a recent National Institute for Occupational Safety and Health reported that there was still chronic underreporting of worker illness, injury, and death. Pendergrass does say that the agency is working to address the “embarrassing” delay between when standards are proposed and when they are eventually finalized.

The exposé in the Times concludes that OSHA’s shortcomings date back to being underfunded and understaffed from its inception: “Funding, staffing levels, and enforcement tools were never sufficient to mount much more than a scatter-shot approach to monitoring the nation’s five million or so workplaces.”