It is exactly 40 years since the United States' OSH Act and the country's first nationwide approach to workplace safety were introduced. The American system of workplace safety is, however, very different to that in the UK, so James Pomeroy compares the two at a time when many leading industry figures on this side of the pond are asking whether we need to change our approach.

The impact of the Occupational Safety and Health Act 1970 has been

significant and far-reaching both in the United States and beyond, with

many international firms using OSHA standards as a technical base. In

the UK, whose primary piece of legislation (the Health and Safety at

Work, etc. Act) came five years later, approaches and attitudes to

work-related health and safety developed very differently, mainly owing

to legal and constitutional variances, but also to cultural

distinctions.

It is generally felt in the UK that this country's

goal-setting, rather than prescriptive, regulatory model, and its

unified and wide-ranging health and safety system, are among the best

in the world, and are certainly preferable to the US system as a whole.

Nevertheless, some elements of the US approach were recently proposed

by the UK's Conservative Party^1,2 as an alternative model and a solution to the "over-regulation of business".  

The structure of US safety

Unlike

the UK, where policy is both developed and regulated nationally,

America's constitution and federal structure provide each of the 50

states with a high degree of autonomy, including in the implementation

and enforcement of OHS standards. Although OHS regulations are

developed and, in the main, regulated by the federal government agency,

the Occupational Health and Safety Administration (OSHA), each state

can opt to develop and enforce its own programme, but these must be at

least equal, or equivalent to the federal requirements. In all, 25

states have instigated their own programmes, and most adopted standards

identical to federal ones; some, however, like California and Michigan,

have developed requirements that are more demanding.³

This

federal structure offers a high degree of autonomy to each state, but

it is not without its limitations, including the varying requirements

between different jurisdictions. Another problem is the differing

priorities each state places on OHS regulation and, although some state

programmes are good, others are felt to be inadequate. Arizona, for

example, was recently criticised by Congress for significant weakness

in the enforcement of its programme, after a number of highly

publicised construction fatalities.
 

Another limitation is the fact that the federal OHS legislation does

not cover public-sector workers unless the individual state operates

its own plans. This anomaly means that nearly 8 million public-sector

workers receive no legal protection from national occupational health

and safety legislation.⁵
 

Getting political
 

When considering the reasons for the differences between the two

systems, it is impossible to ignore the fact that the US has different

attitudes to the role and size of government; Americans have a strong

belief in individualism and a much higher degree of mistrust of

government intervention in the operation of business. Nevertheless, the

development and regulation of safety is subject to much greater

political influence than in the UK, with the creation and enforcement

of regulations in the US often being forced in contrasting directions,

depending on the political orientation of the administration.
 

The last administration (George W Bush), for example, steered OSHA away

from issuing mandatory regulations and towards voluntary guidelines and

forming partnerships with business. The new administration of Barack

Obama appears to be reversing this direction in favour of a more

traditional enforcement strategy, however.
 

An example of this political influence is OSHA's efforts to reduce

musculoskeletal injuries. After 15 years of development and legal

challenge by various interested parties, OSHA introduced the Ergonomics

Standard in early 2001, during the final throes of the Clinton

administration. The Regulations, which included mandatory requirements

for employers to establish ergonomics programmes, assess risks and

implement controls, were contentious and the business organisations

lobbied hard against them.
 

Some three months later, with a pro-business administration in place,

Congress and the newly-elected President Bush repealed the Regulations

and instructed OSHA to develop a more collaborative approach by

replacing mandatory requirements with voluntary guidelines.

Consequently, MSDs – currently estimated to represent a third of all

recordable injuries in the US – are not specifically regulated for in

US workplaces unless the state has developed its own requirements (as

in California, for example).
 

Furthermore, the US law-making process enables special-interest groups

to take a far greater role in the development of OHS legislation.

Consequently, such groups are far more active and undertake

well-resourced lobbying campaigns, frequently using the legal system to

support their cause. This politicisation of safety is difficult to

imagine in the UK where, for the past 30 years, there has been a broad

consensus among political parties on regulating workplace safety and,

although there have been differences in the levels of support and

resourcing between governments, the swings are nowhere near as radical

as those experienced in the US.

Regulations and standards
 

American safety legislation is generally a lot easier to navigate than

the UK's labyrinth of Acts, Regulations and ACoPs. The US has one

primary federal law: the aforementioned Occupational Safety and Health

Act 1970. The Act is organised into four distinct elements; the most

notable are those pertaining to construction and general-industry

workplaces. It is further separated into several "parts" and

"sub-parts", each covering a particular compliance topic, such as

machine guarding, excavations and hazardous chemicals.
 

Generally, the technical requirements of the OSH Act – or standards, as

they are often called – are very prescriptive and tend to focus on

basic mechanical and chemical hazards, with little emphasis on systems,

process and leadership. Consequently, the Act is rather similar in

style to the old UK Factories Act 1961.
 

Take safety training as an example. In the UK, with some exceptions for

specific roles and hazardous activities, training requirements and

frequencies are not specified; the employee must be provided with

sufficient training so that they are ‘competent'. In the US, however,

training requirements and frequencies are prescribed for a multitude of

activities. The Californian OSHA plan, for example, lists more than 100

different types of training that must be conducted – including

rope-access equipment, hearing conservation, and accident

investigation.
 

In some ways, this prescriptive style of legislation is helpful because

the requirements are a lot clearer than under the UK's goal-based

approach. However, it can also mean that dangerous and unsafe practices

go unchecked and, in some cases, excused because they are not

specifically outlawed by the OSH Act. In effect, America places a much

higher reliance on the regulator to define what is acceptable –

contrary to the concept that underpinned the Robens Report that those

that create risk are best placed to manage it.
 

It is also important to note that the OSH Act is not an enabling piece

of legislation, and there is no US equivalent of delegated, or

secondary legislation, such as the myriad UK regulations enacted under

the ‘umbrella' of the HSWA 1974, which have enabled the UK government

to continually update national safety regulations.
Conversely, in

the US, the politicisation of safety and the significant involvement of

the courts and public-interest groups in the development and

interpretation of the regulatory process means it can take up to 10

years to develop and issue a new legislative standard.¹¹
 

The net effect of this is threefold: the pace of the legislature is

slow, safety standards struggle to keep up to date with industrial and

technological developments, and there are many areas where US workplace

safety requirements lag behind those of the EU, or other developed

economies.
 

Arguably, the most powerful elements of HSWA 1974 are sections 2 and 3,

outlining the general duties of the employer. On paper, the OSH Act

does have an equivalent – the general duty clause – which requires

employers to provide "a place of employment which is free from hazards

that are causing, or are likely to cause, death or serious physical

harm to his employees".  There are, however, specific criteria that

must be met before an OSHA inspector can use this clause, one of which

is that the hazard must be correctable (the OSH Act recognises that not

all hazards are correctable).
 

These criteria weaken the practical use of the general duty clause by

requiring an OSHA inspector to meet a higher threshold than their HSE

peer has to demonstrate. Consequently, there is no equivalent of the

UK's "reasonably practicable" requirement, and the measures that a US

employer must take are generally rigidly defined by the regulator and

prescribed in statute. Similarly, there is no requirement for employers

to conduct risk assessments, although OSHA recommends the process.
 

The two systems differ also in terms of the level of worker

participation. Consultation is pivotal to the UK's self-regulatory

approach whereas in the US, although it is not uncommon to operate a

safety committee, it is not a statutory requirement, and worker

participation is generally less effective.

Penalties and sanctions
 

When considering sanctions, it is important to note that OSHA has a

similar but subtly different role to the HSE. In the UK, the powers of

the inspector to enforce safety requirements are separated from the

court's role of judging and penalising non-compliance. In contrast,

OSHA's role encompasses inspecting and assessing for compliance and,

where appropriate, imposing fines. In other words, OSHA inspects,

assesses and then defines any penalties for non-compliance.
 

OSHA's dual role of enforcing and penalising non-compliance results in

a very different style of enforcement to that of the HSE. The UK's

‘compliance-oriented approach' relies heavily on informal interaction

with employers, and generally seeks compliance through education,

persuasion and cooperation, rather than through strict enforcement and

legal sanctions. This approach provides an HSE inspector with a higher

degree of discretion than their OSHA counterpart in deciding what

enforcement action should be taken when a violation is identified.
 

Following an inspection, the OSHA inspector will report any violation

to the area director, who will determine whether to issue a citation (a

type of legal summons widely used in the US for summary offences) and

the proposed penalty. There is an appeal process, whereby employers can

contest the nature of the citation and the proposed fine. Employers

will frequently appeal a citation because it often results in a

proposed fine being reduced. As a result, the whole process of

appealing citations has become contentious, with unions and other

special-interest groups heavily criticising the horse-trading that

occurs after a fine is levied.
 

The level of penalty depends on the severity of violation and how

likely it was that the violation would result in serious harm. For

example, a Serious Violation is where there is substantial probability

that death or serious physical harm could result, and where the

employer knew, or should have known, of the hazard. This carries a

mandatory penalty of up to $7000 (£4325) for each violation, but this

may be adjusted downwards.
 

A Wilful Violation is where an employer either knows that what he or

she is doing constitutes a violation, or is aware that a hazardous

condition existed, and made no reasonable effort to eliminate it. There

is a minimum penalty of $5000 (£3100) and a maximum of $70,000

(£43,250) for each Wilful Violation.
 

If an employer is convicted of a Wilful Violation of the OSH Act that

resulted in the death of an employee, the offence is punishable by a

court-imposed fine, or by imprisonment for up to six months, or both. A

fine of up to $250,000 (£155,000) for an individual, or $500,000

(£309,000) for a corporation may be imposed for a criminal conviction.

In practice, however, this sanction is rarely used: in the 40 years of

its existence, OSHA has secured only 12 criminal convictions.¹³

Consequently, it has come under considerable criticism for the

ineffectiveness of its enforcement action, particularly its use of

criminal penalties.
 

As Silverstein¹³ and many others have highlighted, penalties

in the US are low: the average penalty imposed by OSHA in 2006 for a

serious violation was just $800 (£495), $19,000 (£11,800) for repeat

violations, and $30,000 (£18,600) for investigations associated with a

fatality.¹⁴ However, President Obama is on record as saying

he thinks fines should increase, and that the impact of the appeal

process should be curtailed.¹² (In comparison, the average fine levied in successful prosecutions brought by the HSE is around £19,000.)¹⁵

Partnership and cooperative working
 

OSHA has a number of partnership and outreach programmes, the most

notable being the Voluntary Protection Program (VPP). VPP is designed

to recognise workplaces with exemplary OHS programmes and below-average

injury and illness rates by exempting them from routine OSHA

inspections and allowing them to use the VPP certification for

marketing and promotion. The underlying aim of the programme is to

encourage more employers to go beyond the minimal legal requirements

and provide outstanding levels of OHS.
 

VPP requires management and employees to enter a cooperative agreement

that, in effect, makes the organisation self-regulating. To be approved

for VPP, an organisation must meet a range of criteria, including

operating an active OHS management system, and passing an OSHA audit

every three to five years.
 

Although VPP has existed for more than 25 years, it has grown

significantly since the turn of the decade, when the then

administration encouraged OSHA to place greater emphasis on voluntary

programmes and partnerships. The increased popularity of VPP means

there are now more than 2000 worksites participating.
 

The programme has gained a lot of interest internationally, including

within the UK – the significant similarities between the VPP programme

and the Tories' recent policy paper2 on the future of business

regulation have been noted.¹⁶ The paper proposed replacing

the current approach to regulation with a model similar to that

governing financial accounting. In a system of ‘co-regulation' a

business would employ a qualified health and safety expert, similar to

a chartered accountant, who would audit the firm's internal processes

and controls and, if satisfactory, the firm could then be exempt from

external inspections by the regulator.¹⁷
 

Some studies have found VPP to be beneficial in terms of maintaining

lower levels of incidents. However, others have questioned whether

these improvements actually resulted from the programme, given that a

good safety record is a pre-requisite for a firm's approval for VPP.¹⁸

A similar critique was recently made by the GOA, the US congressional

watchdog, which stated that OSHA lacked proper oversight of VPP and

there was insufficient evidence that the programme actually improved

worker safety.¹⁹ OSHA subsequently announced that it will undertake a comprehensive review and evaluation of the programme.20

Definitions and performance
 

The US requirements for reporting and recording accidents differ from

the UK/EU model in several ways. The American system places a greater

emphasis on recording accidents, but a much lower threshold on

reporting them to the regulator (the US equivalent of a RIDDOR – an

OSHA Recordable – is based on just one day's lost time). Unless the

accident is very serious and results in a fatality, or overnight

hospitalisation of three or more workers, a recordable accident is only

reported to OSHA when the accident log is finalised at year-end.
 

In other words, most accidents are not reported in real time to the

regulator, and OSHA does not get involved in investigating the vast

majority of recordable accidents. Instead, it uses the accident data to

run statistical analysis and target inspections of firms that have an

abnormally high number of incidents. The time between the inspections

taking place and the cause of the accidents can therefore be

significant.
 

The different definitions of a recordable/reportable accident make

comparing accident performance in the two countries problematic, but

not impossible, and the contrast is quite stark. Although the number of

American workers being fatally injured has been falling steadily over

the past decade, the rate remains considerably higher than in the UK

and other EU countries.
 

In 2007, for example, 5657 US workers died in work-related accidents,

which equates to a rate of 3.8 per 100,000 workers.9 In the UK, the

same rate is 0.8.10 A recent study conducted by the European Agency for

Safety and Health at Work identified a similar disparity in the

non-fatal injuries, with the US rate being six times the UK equivalent.²¹

What will the future bring?

The passing of the OSH Act was radical and has clearly been a

factor in driving down the number of workplace fatalities in the United

States over the past 40 years, albeit from a very high base.²² However,

the approach that the Act introduced is highly prescriptive,

inflexible, and is applied through a ‘command and control'-style

enforcement regime that is highly adversarial. This frequently results

in employers viewing compliance as the goal and looking to the

regulator to define what is and is not acceptable.
 

This has created a paradoxical situation: the country that embraces

small government and entrepreneurship has developed one of the most

centrally-controlled and legalistic approaches to workplace regulation.

Conversely, one of Robens' principal arguments in forming the UK's

approach was that far from helping improve OHS, governments that seek

to control and command through prescription can themselves become the

problem.
 

With the ever-increasing pace of technological change, flexible working

arrangements, and the importance now placed on organisational

leadership, it is increasingly questionable if the current US approach

is fit for purpose. The fact that the country's fatality and injury

statistics remain one of the highest among the developed economies

certainly supports the argument for a radical change in approach.
 

OSHA is constrained by both budget and legal authority. The ratio of

workplaces to inspectors is more than twice what it was when the

organisation was set up. Most OSHA standards are ancient and

inadequate, and the organisation lacks the resources, or political

clout to issue an adequate set of new ones. Many injuries and

fatalities occur in the absence of violations of existing standards.

Consequently, changes in the number and type of inspections are

unlikely to have more than a minor impact on OSHA's mission. (If this

critique seems unduly harsh, I should point out that it was actually

delivered by the newly-appointed head of OSHA, David Michaels.)⁴
 

As for the remedy, Michaels outlined four new objectives to ‘fix' OSHA,

the most notable being the introduction of a new rule requiring every

employer to operate an injury and illness prevention programme that

focuses on reducing workplace hazards. Under the plan, employers would

be required to develop and follow their own hazard identification and

reduction plan and could be cited for failing to identify hazards

(especially in cases that resulted in injury). Worker consultation

would also become more prominent, and safety committees would be

mandatory in larger firms. Michaels also highlighted the importance of

changing safety culture and public attitudes to OHS. These changes

would represent a significant redirection for OSHA and a shift towards

a Robens-style approach.

References
1    ‘Tories could ban intrusive inspections' 
2    ‘Cameron blames health and safety for people's frustration with politics'
3    OSHA overview
4    AFL-CIO (The American Federation of Labor and Congress of Industrial Organization): ‘Can OSHA be fixed? What must be done'.
5   

ASSE letter to Congressional Subcommittee on Workforce Protections

Committee on Education and Labor urging inclusion of public-sector

workers in OSH provisions in the Protecting America's Workers Act,

November 26, 2009 – www.safe-workplace.com/safety-blog/2009/11/asse-pushes-for-inclusion-of.html
6    OSHA (2008): OSHSPA Special Report: Impact and Funding of State OSH Plans – and OSHA budget.
7    Health and safety in HSE and HSC Annual Report and Accounts 2007/08
8    Projections of the UK labour force 2006 - 2020; and Work experience of the US work population 2008

9    United States Department of Labor – Bureau of Labor Statistics

10    www.hse.gov.uk/statistics/history/fatal-ld.htm

11    The American Industrial Hygiene Association President's testimony

to the Congressional House Committee on Education and the Workforce's

Subcommittee on Workforce Protections – http://ehstoday.com/ news/ehs_imp_34891

12    Comments by Senator Obama on OSHA violations, Senate Committee on

Health, Education, Labor, and Pensions Hearing: "When a worker is

killed: Do OSHA penalties enhance workplace safety?" April 29, 2008 – www.boilermakers.org/ resources/news/Obama_issues_statement_on_Senate_OSHA_report

13    Silverstein, M (2008): ‘Getting Home Safe and Sound: Occupational

Safety Health Administration at 38', in  American Journal of Public

Health, March 2008, Vol.98, No.3

14    AFL-CIO (The American Federation of Labor and Congress of

Industrial Organization) (2007): Death on the Job. The Toll of Neglect:

A National and state-by-state Profile of Worker Safety and Health in

the United States, 16th edition

15    www.hse.gov.uk/enforce/off0405/off0405.pdf

16    ‘Killing off the watchdog', in Hazards, issue 108, October-December 2009

17    Conservative Party green paper (2009): Regulation In The

Post-Bureaucratic Age. How To Get Rid Of Red Tape And Reform Quangos' –

www.epolitix.com/fileadmin/epolitix/stakeholders/BetterRegulation.pdf

18    Gunning, N and Johnstone, R (1999): Regulating Workplace Safety: systems and sanctions, Oxford University Press

19    GAO (2009): OSHA's Voluntary Protection Programs: Improved oversight and controls would better ensure program quality – http://edlabor.house.gov/documents/111/pdf/publications/GAO-VPP-200905.pdf

20    US Department of Labor's OSHA begins evaluation of Voluntary Protection Programs – OSHA news release, 18 June 2009

21    Hämäläinen, P, Leena Saarela, P K, and Takala, J (2009): ‘Global

trend according to estimated number of occupational accidents and fatal

work-related diseases at region and country level', in Journal of

Safety Research 40 (2009) p125–139; and ‘Incidence of Workplace

Fatalities per 100,000 workers', International Labor Organisation, LABORSTA yearly data

22    AFL-CIO: ‘Workplace Fatalities Since the Passage of OSHA'

James Pomeroy is Group HSE manager for Senior plc.