OSHA 2002: Henshaw's Search for Common Ground

Dec. 11, 2001
After the ergonomics debacle, many OSHA stakeholders long for a more cooperative approach between business, labor and government. Can new OSHA Administrator John Henshaw deliver?

Imagine a world in which OSHA was given the benefit of the doubt!" These words, spoken by John Henshaw in an exclusive interview with Occupational Hazards, reveal the vision guiding the assistant secretary of labor for OSHA.

It takes a lot of imagination to envision OSHA and its stakeholders burying the hatchet and working together to improve the safety and health of America's work force, yet many safety experts are betting John Henshaw is the best choice to help this dream come true.

Henshaw's expertise and experience in the field of occupational safety and health appear to transcend the chasm of mistrust separating labor, business and government. He has more than 26 years of experience managing occupational safety and health in the chemical industry, starting at Monsanto in 1975. Before taking the top job at OSHA, he was the director of environment, safety and health for Astaris LLC, a joint venture between Solutia and FMC Corp. Henshaw served as president of the American Industrial Hygiene Association (AIHA) and is a certified industrial hygienist.

Even with his impeccable professional credentials, given the tough issues facing him, Henshaw's honeymoon period is certain to end soon. By the end of 2002, it will be clearer whether he is achieving his ambitious goal: build on the respect people have for him personally to find common ground among OSHA's polarized stakeholders, win support in the Bush administration and improve the agency's credibility in the safety community.

Current Obstacles

Lack of credibility is one of the key obstacles preventing OSHA from carrying out its mission to protect workers' safety and health, according to Aaron Trippler, director of government affairs at AIHA.

"I think we have an administrator now who has as one of his main points increasing OSHA's credibility," he said.

Trippler and several other OSHA-watchers explained that the problem is not entirely OSHA's fault, but stems from the politicization and polarization that plagues occupational safety and health in the United States.

"There's too much finger-pointing among unions, government and industry," said Philip Lewis, M.D., director of environmental health and safety at Rohm and Haas, a multinational chemical company based in Philadelphia. "People need to respect each other's good will and try to come to practical and reasonable agreements."

Pat Tyson, acting OSHA administrator during the last part of the Reagan administration, agreed that credibility, or "being accepted by both business and organized labor," was one of OSHA's problems.

The biggest obstacle to the agency's success, Tyson said, is its budget. OSHA's mission, to protect the health and safety of America's workers, is far larger than its budget: $426 million for fiscal year 2001. This works out to only $3.96 per worker in the private sector. At its current staffing and inspection levels, it would take federal OSHA 109 years to inspect each workplace under its jurisdiction just once.

A standards-setting process that is all but broken is another big OSHA problem cited by many who know the agency.

"My personal opinion is that improving the standards process should be a major priority for this administration," Trippler said. This would require legislation because most of OSHA's rulemaking procedures are mandated by the Occupational Safety and Health Act and other laws. AIHA is ready to lead the charge on Capitol Hill.

Greg Watchman, an acting OSHA administrator in the Clinton administration, shares the view of many that it takes too long to come up with new rules. He also thinks the standards too often are impractical and based on inaccurate assumptions. His solution is to have the agency test a new rule by issuing it as a voluntary guideline for five years.

Business groups such as Organization Resources Counselors (ORC) for years have pushed for improvements in the process for determining permissible exposure limits (PELs), many of which are more than 30 years old. To bring PELs up to date more rapidly, ORC has called for stakeholder meetings to develop a better process.

Even the National Association of Manufacturers (NAM), a longtime opponent of OSHA rulemaking, agrees that it takes too long to revise or issue new standards.

"I think when something takes 10 years, anyone can say that's not good for either side," said Jill Pomeroy, associate director of employment for NAM.

Because of his business background and the fact that he is serving in a Republican administration, Henshaw may be more focused on building bridges between OSHA and employers. Yet, he is also well aware that, to be successful, he must have good relations with organized labor, a group that puts effective rulemaking at the top of its agenda.

"Ultimately, it's OSHA standard-setting that reaches the furthest," said Frank Mirer, Ph.D., director of health and safety for United Auto Workers.

New Rules in 2002

Forecasting what new standards OSHA will issue in the coming year is a dicey proposition, but Henshaw may have one thing going for him that will help the newcomer to the nation's capital: He is winning the paradoxical Washington expectations game.

When asked what new rules he expects OSHA to come out with next year, Mirer had a one-word answer: "None."

Tyson, however, believes the agency will move ahead with some relatively noncontroversial standards in 2002.

"John [Henshaw] is smart enough to know they have to issue some standards," he said. "I think they'll look at some in the pipeline now like [employer payment for] PPE and applied protection factors for respirators."

Nothing will test Henshaw's search for common ground more severely than the agency's approach to ergonomic hazards. The Bush administration embittered organized labor earlier this year by nullifying the ergonomics standard. While unions have placed a new rule at the top of their agenda, few observers believe the administration will head in this direction unless pushed by Congress.

Voluntary guidelines on ergonomics are a second option, but Watchman believes even this is unlikely, because guidelines can be used by plaintiff lawyers to establish a "negligence guideline," a tort liability for employers.

The events of Sept. 11 have affected the ergonomics issue, delaying OSHA's announcement of how it will proceed and reducing the chances Congress will interfere.

Some observers hoped that the terrorist attacks would help OSHA stakeholders pull together. Whether this will happen on ergonomics remains to be seen, but Mirer showed some signs organized labor may take a pragmatic approach to the issue.

Although he said he wants a new standard, Mirer indicated he could be satisfied with a comprehensive approach to ergonomics that does not include immediate new rulemaking.

"They could start with general duty clause enforcement of ergonomic hazards, build on settlement agreements, train OSHA inspectors and consultants, and fund projects and training grants," he said. "Then you have something coherent that is moving forward."

Goodbye to "Gotcha"?

If Henshaw's OSHA is going to succeed at improving relations with the business community, the agency must make some profound changes in its enforcement program, NAM's Pomeroy said. She cited as the biggest obstacle to OSHA's success the "gotcha culture." She contended that, too often, OSHA inspectors are more interested in handing out citations than helping companies cut illnesses and injuries. Instead, she advocates a more positive approach based on compliance assistance.

To succeed at rulemaking, OSHA needs the help of Congress and its stakeholders. The agency, however, has the ability to upgrade significantly the training of its compliance officers (COs), according to Stephen Yohay, an attorney at the Washington law firm of Arent, Fox, Kintner, Plotkin & Kahn. Yohay has 24 years of experience helping clients with OSHA enforcement issues.

"There are a lot of good people on the CO staff," he said. "However, as someone who deals with them on a day-to-day basis, I and our firm's clients are too often surprised at the lack of substantive understanding of OSHA law, poor investigative technique, even the quality of questions asked by many COs."

As a result, Yohay contended, too much of his time and his clients' money is wasted dealing with citations or inquiries that are the result of misunderstanding or poor investigation.

Other employers complained about the inconsistency among OSHA inspectors in different parts of the nation, which they say can lead to inspections of similar plants that result in quite different citation outcomes.

Some employers are hopeful Henshaw can make a difference. Michael Deak, a corporate director of safety and health at DuPont, has known Henshaw for years and believes he can help OSHA inspectors focus on being more helpful and less combative. "I think he will try to make a difference here," Deak said. "I think people in OSHA are good people for the most part - it's all in the tone they perceive the leadership wants."

Deak and Lewis argued that OSHA has failed to help small- and medium-sized companies champion worker safety. They believe OSHA enforcement and compliance assistance is less important for large companies such as DuPont and Rohm and Haas that have the resources and the upper management support needed for strong safety programs.

Improving the ability of OSHA COs to interact effectively with employers appears to be a top priority for Henshaw. Success here will be crucial for his effort to restore the agency's credibility. "Employers want to work with us to improve our inspection process. We need to find ways to engage them," he said.

Henshaw has outlined a number of initiatives he is exploring:

  • Professional certification of OSHA inspectors
  • Internships with private employers for agency COs
  • Inspectors recruited from private industry
  • Partnerships established with business schools.

Setting up courses in health and safety management at the nation's business schools suggests that the disconnect between OSHA COs and employers cuts both ways. Lewis has long championed requiring such courses in business schools as a way to integrate environmental, health and safety issues into the way companies are run. "I bet most managers haven't even noticed the problem of safety and health management," he said. "If you're not trained in something, it's hard to notice it."

It Takes Three to Tango

Improving compliance assistance and voluntary protection programs are priorities for Henshaw and offer opportunities for healing the rift among stakeholders. Still, much depends on how the money is spent. In this area, the administration appears already to have antagonized organized labor.

Mirer complained that the administration's initial OSHA budget request cut worker training programs by about 30 percent and left unchanged management-dominated compliance assistance. "To me, that's unbalanced," Mirer said. "It takes three to tango - labor, management and government. With training grants, we have a place at the table; with on-site consultation, we don't."

The money for worker training was restored in the Senate's version of OSHA's 2002 budget. At press time, Congress still had not finished work on the Labor Department's 2002 appropriation.

One big test of how well OSHA under Henshaw performs in the area of outreach and enforcement will be the roll-out of the agency's new recordkeeping standard, scheduled to take effect Jan. 1. The revised rule is one of the most significant regulatory changes made by OSHA in years: It affects 1.4 million employers and is the basis of the agency's targeted enforcement program.

"I'd make recordkeeping a big part of outreach in 2002, but this outreach ought to be saying in year two [2003] there's going to be enforcement," Tyson suggested.

While Tyson and others said they support OSHA's program to target inspections at companies with high rates of recorded injuries and illnesses, they worry the program rewards poor recordkeeping while punishing the scrupulous. To keep OSHA's targeted inspection program on track, an effective and well-enforced recordkeeping standard appears to be essential.

In light of the national unity forged by the Sept. 11 atrocities and a new definition of America's priorities, former OSHA administrator Joseph Dear hopes occupational safety might find its place on the national agenda.

"Notwithstanding all the politics of OSHA, there's immense common ground between workers who want healthy and safe environments and employers who want productive, profitable workplaces," he argued. The more OSHA issues can be considered in this light, as opposed to "regulate or not to regulate," the greater the chances for improving conditions for workers.

Based on his years leading the agency, Tyson ruefully noted that perfect harmony among OSHA stakeholders was an unrealistic goal. "You don't want to totally alienate any group," he said, "but I can tell you if I had everybody just a little bit irritated at me, I knew I was doing OK."

Sidebar: John Henshaw's Balancing Act

John Henshaw, assistant secretary of labor for OSHA, is working long hours and travelling many miles to make his dream of a new and improved OSHA a reality. In fact, Henshaw is on the move so much, the only place Occupational Hazards could track him down for an interview was while he was waiting to catch a plane at an airport outside of Washington.

Why is the new OSHA chief on the road so much?

"My primary purpose is to meet as many of the OSHA folks as I can, hear about all the good work they're doing and to convey some of my thoughts about where we ought to head and how we ought to get there," Henshaw said.

Sources with managerial and OSHA experience said that if Henshaw really wants to change the way the agency operates, introducing himself and his vision to agency workers in the field makes sense. "We have the same problem here at DuPont when we want to make changes in people's behavior," said Michael Deak, one of the company's corporate directors of safety and health. "Most OSHA administrators last for only two or three years, and career OSHA people know it."

Henshaw has focused his energy on balancing four priorities for OSHA: strong enforcement, improved outreach and education, enhanced voluntary programs and leading a national dialogue on workplace safety and health. In late October, Henshaw held a three-day senior management meeting in Washington with state and federal OSHA officials, as well as some stakeholders. The purpose of the meeting, he said, "was to do some brainstorming and out-of-the-box thinking" on how to make improvements in the four areas.

"There was some skepticism going in, but everybody left the meeting impressed with the idea we can achieve higher results by balancing our efforts," Henshaw said. "That means not just focusing on enforcement, but also on the other three priorities."

One unusual feature of the meeting was that Henshaw invited worker advocate Ron Hayes, director of The FIGHT (Families In Grief Hold Together) Project.

"The entire room was covered with flip charts filled with new ideas," Hayes said in describing the meeting. "It remains to be seen if they can do everything they say they will, but the energy level was tremendous, and it's because of John. The man never rests, and he's just got these people inspired."

Notable by its absence from Henshaw's priorities is improved OSHA rulemaking.

"I have plans to address it [rulemaking], I don't know exactly how, but we're not going to let this get in our way," Henshaw said. "I see rulemaking as a funnel, and obviously we want to open up the throat of that funnel, but there are other tracks we can take to produce the result we're looking for: addressing the hazard and reducing injuries and illnesses."

Next year at this time, how will we know if OSHA is going where Henshaw wants it to go?

"One of the signs is we will have established some major partnerships with a number of stakeholders. I don't have any specifics, but by the end of 2002, you'll see a lot more stakeholder involvement in issues that not only affect those specific stakeholders, but also issues that deal with the general industry as well.

"I think we'll see a lot more proactive outreach on issues. I think in the past what we've done is make things available, and if you come to us, we'll give you a response. What I'd like to see is a proactive approach - we'll call you. We want to participate. We want to get in front of your group. We're not going to wait for someone to come knocking on our door.

"And I think you'll see some major changes in the four priorities."

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