When the Occupational Safety and Health Administration was founded April 28, 1971, following the December 1970 signing of the Occupational Safety and Health Act, the landscape of workplace safety in the United States was forever changed. According to OSHA, an estimated 14,000 workers likely were killed on the job in 1970, compared to 4,340 workers in 2009. The OSH Act and the creation of OSHA also contributed to a dramatic reduction in serious workplace injuries and illnesses – from 11 per 100 workers in 1972 to 3.6 per 100 employees in 2009.
“Clearly, OSHA has done a lot to improve workplace safety and create greater awareness among employers about safety,” said Edwin G. Foulke Jr., who served as OSHA’s administrator from April 2006 through November 2008. “I really think OSHA’s been the driving force for helping safety and health become more sophisticated.”
“An Impossible Job”
Some stakeholders viewed the evolution of OSHA’s approach to standard setting with a critical eye. Peg Seminario, AFL-CIO’s director of safety and health, noted that in recent years, the agency’s regulatory process has slowed down.
“In its first couple of decades, the agency was more active [in] developing and issuing standards. That process has [since] become much more difficult,” she explained. “So OSHA hasn’t really had an impact on dealing with some of the emerging hazards and issues that are confronting workers today.”
Art Sapper, a prominent OSHA practitioner in the Washington, D.C., office at McDermott Will & Emery, observed that OSHA rulemaking “increasingly displays two related trends – the standards are becoming both increasingly programmatic and increasingly nebulous.”
As examples, Sapper pointed to the Process Safety Management Standard (1910.119) and the Hazard Communication Standard (1910.1200). “These standards essentially tell employers, ‘here is a problem and here are some general management techniques for solving it, now go and do right,’” he said. While such standards provide employers with flexibility, Sapper said they “shift the burden of thought from OSHA’s rulemaking staff to individual employers” on what is needed and often are so vague that “they often leave employers at sea” and “vulnerable to citation” when OSHA disagrees with the employer’s judgment call.
Sapper added that the forthcoming Injury and Illness Prevention (I2P2) standard likely will be so nebulous that “it will threaten to become a citation mill, which is what has happened in California.”
Seminario, meanwhile, sees I2P2 as a solution to “help increase the focus, attention and priority that safety and health gets in the workplace, particularly at a time when there’s a lot of competitive pressures and competition for resources.”
One thing that has not changed over the last 40 years, Sapper observed, is that OSHA “has an impossible job to do, and it does it about as well as anyone can reasonably expect.”
As a 50-year veteran of the safety industry, Dr. Richard D. Fulwiler, president of Technology Leadership Associates, remembers OSHA’s beginnings well, saying he was “very pleased” to see the agency come into being. But while he credits OSHA with improving the overall standard of quality of work life from an occupational safety and health point of view, he believes the agency has “never reached the level of maturation” it should have.
As OSHA moves into its next 40 years, Fulwiler said he would like to see “a moderately aggressive agency” that could set standards more readily and on a shorter timeline; be more aggressive in going after bad actors; and be more supportive of companies and sites that demonstrate safety excellence.
While Foulke acknowledged that enforcement is an important part in OSHA’s responsibilities, he stressed that compliance assistance is the key to creating safer workplaces and that OSHA must continue supplying small- and medium-sized employers with the tools to help them promote employee engagement.
“Enforcement will never get you to zero [injuries]. You can’t force someone to be safe. You have to get employees to want to be safe,” Foulke said. “You need to have employee engagement, and enforcement does not foster employee engagement. That’s why I think compliance assistance is so critical.”
Seminario, meanwhile, hopes to see more regulatory action from the agency in the future.
“I’d like to see the agency get back in business of issuing some regulations, because those make a real difference when it comes to changing conditions and changing practices,” she said. “I think in the absence of government mandates, safety and health doesn’t get the priority it deserves.”