A recently released AFL-CIO report asserted that the Occupational Safety and Health Administration (OSHA) lacks sufficient enforcement and coverage resources to protect workers.
According to the report, Death on the Job: The Toll of Neglect, OSHA is underfunded and understaffed and issues penalties that are too low to be effective deterrents.
A combination of too few OSHA inspectors and low penalties makes the threat of an OSHA inspection hollow for too many employers, the report said.
The report states that 13 workers die on the job every day, while another estimated 137 per day (or 50,000 each year) succumb to occupational diseases. The AFL-CIO believes that the official number of workers experiencing illnesses and injuries may be two to three times greater than the 4 million reported.
The union federation also directed criticism at the White House Office of Management and Budget, for delaying OSHA’s proposed rules, and the Republican majority in the House of Representatives, for “launching an assault on regulations.”
There are currently 1,938 federal and state OSHA inspectors responsible for enforcing the law at more than 8 million workplaces, according to the report. In fiscal year (FY) 2012 the 873 federal OSHA inspectors conducted 40,950 inspections, and the 1,065 state OSHA inspectors conducted a total of 51,281 inspections.
“At its current staffing and inspection levels, it would take federal OSHA 131 years to inspect each workplace under its jurisdiction just once,” the report stated, noting that there is one inspector for every 66,776 workers.
When the AFL-CIO issued its first Death on the Job report in 1992, federal OSHA could inspect workplaces under its jurisdiction once every 84 years.
Since the passage of the Occupational Safety and Health (OSH) Act, in 1970, the number of workplaces and workers under OSHA’s jurisdiction has more than doubled, while the number of OSHA staff and OSHA inspectors has dropped, the report said.
In 1975 federal OSHA had a total of 2,435 staff and 1,102 inspectors responsible for the safety and health of 67.8 million workers at more than 3.9 million establishments. In FY 2012 there were 2,305 federal OSHA staffers responsible for the safety and health of more than 129.4 million workers at 8.8 million workplaces.
The current worker-safety law still does not cover 8 million state and local government employees in 25 states and the District of Columbia, “although these workers encounter the same hazards as private-sector workers and in many states have a higher rate of injury than their private-sector counterparts,” the report noted.
Penalties Have Increased, But Still Too Low
Penalties for significant violations of the law have increased under the Obama administration. In October 2010, OSHA announced a new penalty policy to more “appropriately reflect the gravity of the violation and provide a greater deterrence.”
The average federal OSHA-proposed penalty for serious violations has doubled because of this change. A violation is considered “serious” if it poses a substantial probability of death or serious physical harm to workers. In FY 2012 the average penalty under federal OSHA for a serious violation was $2,156, well below the $7,000 penalty that the law permits for serious violations. The state OSHA plans—under which the average penalty for a serious violation was $974 in FY 2012—have not yet adopted this change in penalty policy.
The number of willful violations issued by federal OSHA fell from 572 in FY 2011 to 424 in FY 2012. The average penalty for willful violations also decreased, from $39,751 per willful violation in FY 2011 to $35,503 in FY 2012. For repeat violations, the average penalty per violation increased, from $6,958 in FY 2011 to $7,220 in FY 2012.
In the OSHA plan states, in FY 2012 there were 195 willful violations issued, with an average penalty of $35,744, and 1,908 repeat violations, with an average penalty of $2,420 per violation.
While somewhat improved, OSHA enforcement in cases involving worker fatalities isn’t strong enough, the report said. According to OSHA inspection data, the average total penalty in a fatality case in FY 2012 was $9,057 for federal and state OSHA plans combined.
“However, averages can distort the real picture of fatality penalties in situations in which large cases with very high penalties raise the averages substantially,” the report explained.
The median penalty for a fatality investigation conducted in FY 2012 was $5,175 for federal OSHA, and the median current penalty for the state OSHA plans combined was $4,200, according to OSHA enforcement data.
Criminal Enforcement Rare
Criminal enforcement under the OSH Act has been and remains exceedingly rare, the report said.
Only 84 cases have been prosecuted since 1970, with defendants serving a total of 89 months in prison. During this time there were more than 390,000 workplace fatalities, according to Labor Department data. In FY 2012 13 cases were referred for possible criminal prosecution.
By comparison, the Environmental Protection Agency reported 320 criminal enforcement cases initiated in FY 2012 alone and 231 defendants charged, resulting in 79 years of prison time and $44 million in penalties—more cases, fines and prison time in one year than during OSHA’s entire history.
“The aggressive use of criminal penalties for enforcement of environmental laws and the real potential for jail time for corporate officials serve as a powerful deterrent,” the AFL-CIO said.
“But as long as the criminal penalty provisions of the OSH Act remain so weak, there will be few criminal prosecutions for job-safety violations, even those that result in worker deaths.”
Roy Maurer is an online editor/manager for SHRM.
Follow him on Twitter @SHRMRoy.
Proposal to Overhaul OSH Act Returns, SHRM Online Safety & Security, April 2013
Bill to Strengthen OSHA Penalties Debated, SHRM Online Safety & Security, March 2010
Protecting America’s Workers Act of 2009: A Plan to Give OSHA a Lot More Teeth, SHRM Online Safety & Security, December 2009
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