Login Register Subscribe
Current Issue

Safety act expanded employer responsibilities

Reprints

Business Insurance is older than the U.S. Occupational Safety and Health Administration. But the 1970 passage of the Occupational Safety and Health Act that created the agency is considered a watershed moment in the workplace safety arena.

OSHA officially launched in April 1971, with George Guenther appointed as the agency’s first director. An April 2017 report called “Death on the Job” by the AFL-CIO union estimates that 553,000 employee lives have been saved since the passage of the statute.

“Before that, the recognition that employers have the responsibility to provide a safe workplace and that workers have a right to a safe workplace did not exist,” said David Michaels, the longest-serving assistant secretary of labor for occupational safety and health, under the Obama administration, and professor in the Department of Environmental and Occupational Health at the Milken Institute School of Public Health at The George Washington University in Washington. “That’s the largest advance in the last 50 years.”

OSHA’s establishment, as well as the creation of its sister agency, the Mine Safety and Health Administration under the Federal Mine Safety and Health Act of 1977, contributed to the beginning of a yet-to-be-completed shift away from the notion that employees were always at fault for getting hurt on the job and that most workplace fatalities and injuries were unpreventable, experts say.

“These theories were dangerous in that their application led to inadequate preventive programs or (programs) that were misdirected and unsuccessful,” Mr. Michaels said, adding that “the least successful way to prevent (injuries) is to focus on stopping human error. We’re all human, and we all make mistakes. Instead of focusing on errors because errors are inevitable, we need to build systems that mitigate the effects of errors. Unfortunately, this misbegotten theory is still alive in a lot of the behavioral-based safety programs, and it really needs to be eradicated.”

On the workers compensation side, the exclusive remedy system was created to allow injured workers to be covered for medical expenses and loss of earnings after workplace accidents in return for giving up the right to sue their employers.

But the plaintiffs bar has convinced state legislatures to amend laws to allow employers to be sued for tort negligence if they engage in gross negligence or willful misconduct, said Edwin Foulke, an Atlanta-based partner at Fisher Phillips L.L.P. and a former assistant secretary of labor for occupational safety and health under President George W. Bush. “Now, you have that trade-off being changed, particularly in the last 10 years,” he said.

But other experts say the situation has worsened for injured workers since the publication of the seminal 1972 Report of the National Commission on State Workmen’s Compensation Laws. The report, commissioned as part of the OSH Act, concluded that the states’ primary responsibility for the workers comp program should be conserved, but also determined that the protections afforded to workers were generally “inadequate and inequitable” and made 84 recommendations to improve the system, with 19 deemed essential.

However, a 2016 U.S. Department of Labor report warned that injured workers faced great risk of falling into poverty because of the failure of state workers comp systems to provide them with adequate benefits. Workers pay about 50% of the costs related to their occupational injuries and illnesses out of pocket, with only 21% of the costs borne by the comp system and 13% paid by health insurance, according to a 2012 study published in the Journal of Occupational and Environmental Medicine.

“I would say, in most cases, workers comp fails workers,” said Deborah Berkowitz, senior fellow with the National Employment Law Project in Washington. “It’s really all about companies disowning their obligations. I think the workers comp system is incredibly broken.”

States such as West Virginia have made it increasingly difficult for injured workers to receive benefits, including deeming them ineligible if they cannot prove the workplace was the primary cause of their injuries or requiring doctors to apportion the extent to which the workplace led to the injuries and limiting their benefits accordingly, said Emily Spieler, Hadley Professor of Law at Northeastern University School of Law in Boston and a former commissioner of the West Virginia Workers’ Compensation Fund.

“I think we do have a problem in that we have this state-by-state system where states continue to be extremely concerned that they may not be competitive with other states,” she said. “I know that people in the workers comp industry are deeply opposed to any kind of federal intervention to set some kind of standard. On the other hand, we really have a problem because the current situation is leading time and time again to states reducing benefits because they feel compelled by issues of business competitiveness to make changes. I don’t think there’s any good evidence that corporations are making business siting decisions based upon the cost of workers compensation, but there’s certainly a lot of chatter about that. I think the only way to even begin to think about dealing with that problem is by having some kind of national intervention, and I don’t think that’s at the top of anyone’s list in Congress right now.”