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The U.S. Occupational Safety and Health Administration is continuing to shift away from its policy of publicly shaming employers for workplace safety incidents, as evidenced by the recent removal of data on workplace fatalities from its home page.
Until last week, OSHA’s website prominently featured a section that stated more than 4,500 workers lost their lives on the job every year and listed the names of those who died in recent months. But that section has been replaced with one that provides a few examples of the agency’s cooperative programs that work with and recognize employers who create safe workplaces.
“If the stories of workers who are killed aren’t told, they become invisible and there’s little reminder to employers why safety is so important,” said David Michaels, former assistant secretary of labor for occupational safety and health in Washington and professor in the Department of Environmental and Occupational Health, Milken Institute School of Public Health, The George Washington University in Washington, D.C. “It’s great when employers voluntarily comply with OSHA and go beyond complying with OSHA, which is what (the Voluntary Protection Program) requires. But most employers don’t get it and they really need to be reminded why we’re doing this. Taking the names and the stories off the front page of the OSHA website is a real setback and will not lead to more employers doing the right thing.
“Clearly, the current administration is rejecting a lot of the thinking that went on before it” under both Democratic and Republican administrations, Mr. Michaels continued. “The current administration thinks all regulation is bad and that’s the view of Washington ideologues and some of the trade associations, but employers need and want common sense regulation.”
However, employers have long been wary about the agency’s public shaming tactics, particularly in the form of press releases distributed by OSHA after it issued citations and proposed fines against employers for workplace safety violations, but before they had been fully adjudicated and sometimes before some employers say they even received notification of these citations and penalties. Under the Obama administration and with Mr. Michaels’ vocal support, the agency had a policy to publicly disclose citations and proposed fines above $40,000, with some news releases including the names of the cited employers' workers compensation insurers.
“It really never had the impact that the Obama administration thought it was going to have,” said Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce in Washington. “If you look at the rates of injuries and illnesses and fatalities, they never came down in any real appreciable way given the emphasis the previous administration put on that strategy as a way to bring those numbers down. When you get down to the question of results, the shaming strategy that the Obama administration relied so heavily upon never produced the results they wanted it to produce.”
One of the big parts of that strategy was the press release component, he said. It was not unusual for four or five citation-related press releases to be issued by the agency several times in a week under the Obama administration, but that pace has significantly slowed down, with only five of these types of press releases issued to date in August.
“We understand OSHA is going to talk about cases in the press,” Mr. Freedman said. “What we didn’t care for was some of the overheated rhetoric in those press releases. Those press releases were announcing citations, which really are nothing more than an allegation by OSHA that an employer has been found at fault. It’s not a final determination at all. Of course, OSHA never put anything out to clear the record once the cases were finally resolved if the employer was found not be at fault or agreed to some settlement or if the final resolution was not as severe as what the initial allegations in the press releases talked about. We thought the press releases skewed the discussion and were left out there for all to see well past the time the description of the case was valid.”
In contrast, the other three of a total eight press releases issued by the agency this month are about cooperative initiatives with employers, including a second stakeholder meeting on potential changes to the Voluntary Protection Program being held this week in New Orleans.
“I think it’s notable that they are actually using words like ‘working with employers.’” Mr. Freedman said. “That is a very distinct change of tone from the previous administration, which liked to think it was in some type of collaborative relationship, but in reality, was never in a collaborative relationship and was regarded as being openly hostile to employers. It reflects the idea that this administration recognizes that improving workplace safety goes through employers and you need figure out how to help employers get them to where you want them to go.”
In addition, employers expressed concern about the security of the information provided to the agency under the controversial requirements of OSHA’s electronic record-keeping rule — concerns that were realized when OSHA was informed less than two weeks after launching its injury tracking application about a potential compromise of user information.
“That type of problem is something that the Chamber as well as others indicated could be a problem with people submitting their data to OSHA,” Mr. Freedman said. “OSHA never made any representations that they could protect this data in any special way.”
The U.S. Occupational Safety and Health Administration plans to issue a request for information in April 2018 regarding potential updates to its lockout/tagout standard, a frequently cited violation that is increasingly deemed out of date.