Ergonomics, OSHA Rulemaking Haunt 2004 Election

Oct. 7, 2004
What's at stake in the upcoming election for partisans of occupational safety? Labor and industry representatives are so at odds, many don't even agree on how divided they are.

If you want to understand why the workplace safety community is so polarized as the nation prepares to choose a president and a new Congress, OSHA's rulemaking record under President George W. Bush and Sen. John Kerry's support for a new ergonomics standard are the best places to start.

More surprising, however, is that stakeholders differ on how important the 2004 national elections will be for workplace health and safety. While labor representatives use almost apocalyptic language when speaking about what a Republican victory will mean for their issues, the industry people we spoke with doubt much will change no matter who wins the race for the White House.

It's Still About Ergonomics

Ergonomics was, is and promises to be the single most decisive issue in the politics of occupational safety.

Three years ago, Sen. John Kerry voted against repealing the ergonomics standard ultimately quashed by President Bush. Although it is not exactly the centerpiece of his campaign, according to Kerry's Web site he still "strongly supports implementation of a mandatory ergonomics standard."

Nullification of the Clinton administration's ergonomics standard early in 2001 was one of the first acts of the Republican Congress and the newly elected President Bush. The demise of this standard in particular, as well as OSHA's failure to issue any other major rules, delighted many in the business community, embittered organized labor, and further polarized an already deeply divided workplace health and safety community. Worker advocates also say the Mine Safety and Health Administration (MSHA) has bowed to industry pressure and stepped away from rulemaking.

"There are three OSHA program areas: regulation, enforcement and the softer stuff like compliance assistance and voluntary programs," explains Pat Tyson, a former OSHA official who now works as a management attorney in Atlanta at the Constangy, Brooks & Smith law firm. "If Bush is reelected, we will probably continue the same course, consultation first, enforcement a pretty close second, standards at the bottom. My guess is that if Kerry wins, these priorities will be reversed."

Peg Seminario, director of the AFL-CIO's Department of Occupational Safety and Health, while conceding it would be difficult, put ergonomics at the top of her rulemaking wish list if Kerry wins the election. In addition, she believed there would be an attempt to address:

  • Reactive chemicals;
  • Permissible exposure limits (PELs);
  • Silica;
  • Hexavalent chromium;
  • Safety and health programs.

But it is far from certain Kerry could deliver on an aggressive new regulatory agenda. There are always significant legal and political barriers to issuing new standards, and a new ergonomics rule would face even more formidable obstacles. In addition to fierce industry opposition, OSHA would have to produce an entirely new standard. The Congressional Review Act, which Congress used to nullify the old standard, forbids OSHA from reissuing a regulation that is "substantially the same" as the one Congress rejected.

One Trick Pony?

"Unfortunately, I can't think of any," is what Seminario says when asked to name OSHA's accomplishments during the past 4 years. "This is the only administration since the beginning of OSHA that has failed to issue a single major safety and health rule."

OSHA Administrator John Henshaw, conceding the difficulty of issuing new standards, chose instead to focus on the kinds of voluntary efforts long favored by industry: alliances, partnerships and compliance assistance.

Randall Johnson, vice president of labor, immigration and employee benefits for the U.S. Chamber of Commerce (USCC), defended Henshaw's controversial decision to remove many rulemaking initiatives from the agency's regulatory agency.

"All John was doing was just trying to get some things done, rather than have a whole lot of projects and get nothing done," Johnson explained.

Henshaw justified the decision to withdraw most major rulemaking items from the regulatory agenda by promising to complete those that remained on schedule. However, according to a report issued by OMB Watch, a Washington, D.C. non-profit research and advocacy center, OSHA's most recent regulatory agenda revealed the agency failed to meet three-fourths of the deadlines set in the previous agenda.

Perhaps one indication of OSHA's shift away from issuing standards is that the agency's rulemaking appears to have fallen off the radar screen at the USCC. "I track ergonomics, some enforcement cases and OSHA reform bills," says Johnson. "The other things at OSHA I just don't track because I don't have the staff to do it."

Aaron Trippler, director of government affairs for the American Industrial Hygiene Association (AIHA), praises OSHA for increasing professional certification among agency employees and building partnerships with companies. "OSHA has determined that standard-setting is not the only function of the agency," says Trippler. "Regardless of what one thinks about an ergonomics standard, the reality was there was not going to be a standard. I think putting out [voluntary] guidelines has been an accomplishment."

Not all business groups are satisfied with OSHA's failure to promulgate standards. "To some extent they've become a 'one-trick pony': alliances, guidance and partnerships," comments Frank White, vice president in the Washington, D.C. office of Organization Resources Counselors (ORC) Inc., a consulting firm that represents many of the nation's largest companies.

While recognizing the complex hurdles that block OSHA rulemaking, White believes OSHA needs to find ways to overcome these challenges.

"I think it's a fundamental function of OSHA to issue standards. I don't think OSHA can say implicitly by their failure to issue new standards, 'we're stymied by the system,' so we'll divert our attention to guidelines and alliances."

Provoked Into Unity

While OSHA's rulemaking record has divided stakeholders, in at least two cases, opposition to OSHA and the Bush administration appear to have brought labor, professional associations and industry together.

For over a year, stakeholders have been meeting to try to update OSHA's aging PELs. OSHA chose to do little more than observe the effort, which has made progress but not yet reached agreement on a proposal.

"I think if OSHA were more serious about addressing critical issues, they certainly would have tried to participate in the clear problems with out-of-date PELs," says White, who added that the Clinton Administration's OSHA also failed to address PELs.

"You would think this would be a natural for John Henshaw, as he is an industrial hygienist," says Seminario. "The stakeholders who have been meeting include employers. This shows they [OSHA] are totally anti-regulatory."

According to Trippler, updating PELs remains a top priority for AIHA, where Henshaw once was president.

Stakeholder agreement is even deeper and broader that the proposed reorganization of the National Institute for Occupational Safety and Health (NIOSH) is a bad idea. Many fear the proposal will push NIOSH farther down the bureaucratic food chain within the Centers for Disease Control and Prevention.

"Somebody pointed out after a meeting on NIOSH reorganization that we haven't gotten stakeholder unanimity on an issue for the last decade except for this," says White.

The consensus is that Kerry would be more likely to revisit the NIOSH reorganization issue.

Edwards vs. USCC

Despite the hurdles of ergonomics rulemaking, Kerry's past and present support for a new standard tops the list of industry concerns about the Democratic nominee. "Sen. Kerry has called for reinstating the ergonomics regulation. That's the biggest buzzword," says Chris Tampio, director of employment policy at the National Association of Manufacturers.

Still, employers have more powerful reasons for opposing the Democratic ticket that are unrelated to workplace safety and health and perhaps unrelated to Kerry himself.

After Kerry selected Sen. John Edwards, D-N.C., as his running mate, USCC took the unprecedented step of involving itself in the presidential election. Edwards' past career as a trial lawyer, not the ambitious OSHA reform proposal he pushed while still a presidential candidate, drove the decision that tilted USCC toward Bush-Cheney.

"We've never gotten engaged in a presidential election before," explains Johnson. "Our main concern is tort reform, class action lawsuits and his general background as a trial lawyer, not specifically safety and health issues."

Between the 40-Yard Lines?

In fact, Johnson played down the differences between the two parties on OSHA issues.

"The idea that the Bush administration combined with the Republican House and Senate has resulted in a significant roll back in workplace protections doesn't square with reality," Johnson contends. He argues that, in addition to OSHA, there are still an enormous number of employment laws. In nullifying the ergonomics standard, Bush only blocked an effort to expand one piece of the pie.

"The fights we have are important," Johnson argued, "but they're between the 40-yard lines."

To understand how differently labor and industry see the same set of "facts," contrast Johnson's statement with the take on the Bush administration by the director of health and safety for the United Auto Workers.

"Not one single choice they made was protective of workers," Frank Mirer contends. "Essentially, Bush and Cheney put a target on our backs."

Many labor leaders are embittered because they believe OSHA under Bush has essentially ignored them. In addition to the rulemaking failures, they point to the effort to cut worker-training grants that were channeled through unions and the exclusion of labor from nearly all the alliances OSHA formed in recent years.

Tampio and other industry representatives contend OSHA enforcement hasn't slackened under Bush, but once again labor groups disagree, pointing to the decrease in cases with proposed penalties topping $100,000.

In another sign of the deepening partisan split, the chamber's move into election year politics has been matched on the other side by the formation of a group with labor ties and Democratic preferences. But unlike the general litigation fears driving the USCC, supporters of the Political Action Committee for Occupational Safety and Health (PACOSH) say they are motivated by workplace safety.

"For the first time, there's now a political action committee that will support candidates solely because they are advocates for safety and health and support enforcement," explains Joel Shufro, treasurer and executive director of the group. Shufro is also the executive director of the New York Committee for Occupational Safety and Health, a labor-oriented, non-profit organization based in New York City.

The impetus for PACOSH?

"It's in response to the previously unprecedented organization of industry groups opposing OSHA, workplace safety and health rules and enforcement," says Shufro. "In the past, many safety advocates gave money to candidates, but the money went into a pot and the candidate, while grateful, really didn't understand the concern."

Shufro concedes PACOSH cannot match the money and organization of industry trade associations who, he says, want to weaken OSHA. "But it's important for us to support those candidates willing to stand up on our issues."

Whither OSHA?

For those with long experience within and around OSHA, the growing politicization of OSHA has taken a toll on the agency's morale and effectiveness that will persist no matter who wins the election. As a result, some weary OSHA veterans also wonder how much difference the next president can make on the agency's future direction.

"We've watched two administrations more or less fail," comments one OSHA insider. "Maybe Kerry understands there's got to be a new approach, but I don't know that."

Even those at OSHA who favor more aggressive rulemaking worry that a Kerry victory won't automatically lead to success. "There have to be new rules, but if they just try to turn back the clock it won't guarantee effective rulemaking," says an OSHA observer. "You need the expertise and creativity to look at problems in a new way."

After the failure of the ergonomics standard and 4 years of voluntarism, some current and former OSHA employees say whomever is named to head OSHA will find a national headquarters drained of morale and rulemaking talent. Just as the budget deficits will limit OSHA initiatives, this brain drain may hinder new rulemaking.

But while industry leaders and OSHA insiders wonder how much difference the election will have on the government's approach to workplace safety, labor leaders are convinced this election is a critical turning point.

"If we have 4 more years of Bush and Cheney," predicts Seminario, "you'll have an OSHA and an MSHA that will basically be consultation agencies to help business."

Sidebar: OSHA Reform: Does It Matter Who Wins the Senate?

The AFL-CIO's Peg Seminario and Randall Johnson of the U.S. Chamber of Commerce don't often see eye to eye on OSHA issues, but they agree about one thing: when it comes to the control of Congress, it's OSHA oversight not legislation or appropriations that's most critical.

"I think one thing reporters miss about changes in elections is Congress's oversight function," says Johnson, who used to work in the Department of Labor under President Ronald Reagan, when Sen. Ted Kennedy, D-Mass., sat in the oversight chair. "I'm familiar with the pressure that can be brought to bear on an administration by Senate oversight, and believe me, it is significant."

Most political insiders believe the odds are against Republicans losing control of the House. Democrats have a better chance in the Senate, where they only need to pick up two seats to gain control.

There are currently several OSHA reform bills knocking around the halls of Capitol Hill. But because major legislation requires a 60-vote super-majority to win passage in the Senate, only items that have broad consensus are likely to pass. At this point, none of the OSHA measures have bi-partisan support.

Rep. Charlie Norwood, R-Ga., has proposed forcing the federal government to pay the legal fees of companies who prevail when contesting alleged OSHA violations, a bill that has the strong support of industry and is fiercely opposed by Democrats.

Labor supports Sen. Jon Corzine, D-N.J., who wants to make it a felony punishable by up to 10 years in prison when a worker dies because of an OSHA willful violation.

Most recently, Sen. Mike Enzi, R-Wyo., has reintroduced a bill that, among other things, encourages employers to conduct third-party safety audits. Enzi would also make it a felony when a worker dies because of an OSHA willful violation.

Few political insiders think any of these bills are likely to be passed anytime soon.

"Nobody's pushing for OSHA reform. The status quo is fine for the business community, so why invest the political capital when you're not unhappy with how things are going?" explains Pat Tyson, a partner at Constangy, Brooks & Smith LLC.

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