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March 3, 2010

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Occupational health and safety in the USA

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 Party1,2 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.

 

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 100different 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.

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