OSHA and the new administration
I have been practicing OSHA law since 1977, a mere seven years after it was
signed by President Nixon.
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Earlier in the year, I gave a seminar with a retired area director of OSHA. Area
directors do the real heavy lifting of OSHA enforcement, supervising the
compliance officers and signing off on citations issued by the agency.
This particular former area director, a great fellow who was one of the best
area directors in the nation, candidly admitted that the agency spends more
time worrying about “compliance with its regulations” than the safety of employees.
President Obama has not as of this writing appointed a new assistant secretary
of labor for OSHA, but the acting administrator has given us a hint where OSHA
intends to go.
Unfortunately, the agency does not intend to make the safety process less
adversarial. In fact, there is talk about increasing fines and reviewing OSHA’s overall penalty structure. I doubt that the review will result in lesser
penalties, or a friendlier penalty structure.
The acting administrator also said that OSHA will address ergonomics “in some way, shape, or form,” within a few years. He called the issue “a huge safety and health problem” and “a huge political football.” He should have called ergonomics a “huge regulatory nightmare.”
As many readers know, ergonomics encompasses how tasks are performed in the
workplace. The keyboard I am typing this article on is “ergonomic,” meaning it cost an extra $20 to have the keys turned at a slight angle, a wrist
rest on the bottom, and a warning on the box to take “regular breaks.”
It’s that warning that has me concerned about OSHA’s decision to tackle ergonomics.
We could see OSHA, by regulation, dictate how long employees can work on any
repetitive motion task, requiring employers to give regular breaks and time
off.
Under the Fair Labor Standards Act, most breaks must be compensated, so in
effect, OSHA-dictated breaks will be paid time off. We could also see OSHA get
into the “how things should be done” industry, dictating exactly how high a worktable must be, how far a monitor
must be from the typist, how sharp a knife must be for butchering operations,
and so on and so forth.
In the drycleaning industry, many tasks are repetitive. Counter help must be on
their feet most of the day. OSHA will no doubt enact ergonomic rules that will
affect drycleaners, especially inside the plant. Stay tuned.
The acting administrator further noted that many of OSHA’s standards are old and dated. That, unfortunately, is true. Many of the
standards currently in use were adopted from standards in use in the 1950s.
The newer OSHA regulations, however, suffer from the same bloat one sees in
legislation. Instead of a handful of solid safety rules, we see page after page
of directions telling employers and employees exactly how to erect scaffolding,
operate a crane, or vent gases. New technology is almost never accounted for in
OSHA regulations.
The acting administrator did say one encouraging thing: “We want strongly protective standards, but also ones that make sense.”
That is easier said than done.
In preparing for the newer, more aggressive OSHA, drycleaners should review
their safety programs and bring them up to date. If you do not have a program,
get one.
Also, check on studies of repetitive motion injuries in the industry. You may
find that inefficiency can be increased by taking “ergonomics” into account.
The federal government believes that safety must be imposed on employers through
regulations and fines. I believe that employers are interested in safety and
employee health, even if only because safe practices lower workers’ compensation premiums.
Be prepared for OSHA, but better yet, be safe.
