The OSHA Underground posted a short article on a Chemical Safety Board (CSB) recommendation that OSHA cover all public employees, not just federal employees. While I agree with this in principle, I'm willing to bet dollars-to-donuts that it will never happen.
The first obstacle to local government coverage by OSHA is the lack of political will to make it happen. No state, county, or municipal government is going to willingly let the federal government tell it what to do with its own people. Keep in mind the members of Congress are part of their state's political machinery and they listen to the local politicians.
Second, what is the enforcement going to look like? Is it going to be like federal agency enforcement, where there are only theoretical penalties and the only time anything changes is when there's a press release and the Secretary of the department gets called before Congress, or on military bases the commanding officer gets reprimanded or removed? Even that doesn't always work, just ask the fire fighters who work for the US Forest Service. Or do we change the system and actually make the agencies pay the penalty?
The third problem is where do we stop? Are we going to tackle violence to police officers? Are we going to cover the local judiciary or legislature when we don't even cover our own?
The fourth problem is that these agencies have the same issues we have, we don't set our own budgets and have no way of increasing revenue to compensate for the financial loss. Do we risk layoffs or depriving employees safety and health training because we've just ruined the budget? Certainly large metro areas won't have trouble with penalties, but don't forget that there are a lot more small towns out there than there are big cities.
The fifth problem is that we would have to have a dispute resolution system in place, which could mean simply rolling it into our current ALJ system, or it could mean something totally different.
And those are just the problems I've been able to identify, what about those I haven't foreseen?
As much as local government employees need protection, I just don't see it in my working life time.
Great indepth analysis. It certainly should give anyone pushing this some pause before charging blindly into themodification of the OSHA Act.
ReplyDeleteI agree with the first comment... very good and thoughtful piece! There is an added point. It's not just about "protecting public employees". It's about getting as many regulations/rules out there regardless of enforcement. It's intended to give the unions a helping hand. Ala, seems like we need to unionize this very dangerous law clerk office because they just aren't abiding by the draconian rules. Let's get'em!
ReplyDeleteBut the model already exists, and it's not the approach used with federal employees.
ReplyDeleteStates with approved state plans (such as Oregon, where I am the Administrator) are already required by the federal OSHAct to cover public sector (state and local) employees. Federal OSHA even monitors us on how we are addressing those issues. And three states have state plans specific to public employees, even though federal OSHA handles their private sector enforcement.
In most, if not all, of those states that means actual penalties just like private sector employers. It also means that some fairly dangerous exposures get covered (such as firefighting and highway maintenance, to name just two).
Michael Wood is spot on--but the model to look at is one already addressed by the Act and is one of state protection-- not the underfunded, understaffed federal government trying to regulate state employees. The hazards faced by public employees are significant and these employees need protection--but not by federal OSHA
ReplyDeletePerhaps this is actually what the doctor ordered.
ReplyDeleteCurrently, states that have no enforcement for the private sector and have federal enforcement are not motivated to take over private sector enforcement within their states. It costs money and there is seemingly no benefit. What better motivation for these states to come up with their own plan than by allowing a bunch of Feds to poke around in their operations and when they find fault cite the state. This would produce penalties and money from the State coffers and put it into federal coffers.
I foresee states wanting to control this. They won’t be able to get the penalties, but they would be able to control some of the inspection activities if they were to run their own state program. If the OSH Act is changed I predict there will be a flood of States wanting to set up their own enforcement program.
States running their own OSHA program, isn’t this what Congress wanted in the first place?
While covering public sector employees is required by state plans, did anyone bother to read Section 4(b)(1) of the OS&H Act of 1970? The language there precludes federal OSHA from covering public (e.g.,state) employees. Thus the OS&H Act itself will have to be amended to make his coverage happen and then there is the little issue of states rights versus the federal government and amendment IX of the U.S. Constitution. I see big hurdles to overcome before this ever becomes a reality despite the good intention of the CSB recommendation
ReplyDeleteNice try. Section 4(b)(1) is not the section of concern.
ReplyDeleteLook to Section 3 (5). The definition of employer would have to be amended. Change "but does no include" to "and includes".
This is change that is needed. Try talking to the daughter of a worker killed in a pefectly legal 12 foot deep trench. Compounding that tragedy is the fact that such "accidents" will never even be investigated. Opposition comes from the League of Cities, Conference of Mayors, etc., who claim on one hand, they're already taking care of their employees so they don't need OSHA coverage, and on the other hand, it would be too expensive. How something you're allegedly already doing can be to expensive is a mystery to me. Whether states cover themselves (as CT, NY, NJ and soon IL do), or whether the feds do it, it needs to happen. Those under 4(b)(1) are another category of workers who don't receive OSHA coverage. Passage of the Protecting Americas Workers Act would address both of these problems.
ReplyDeleteIf CT, NY, NJ and soon IL can do it, then it is just moving the remaining 18 states to cover public employees. The model exists. OSHA can fund a state to do its own enforcement like NY, NJ and soon IL or take it over.
ReplyDeleteVirgin Islands also has a public sector only State Plan. If you count Guam and the District of Columbia, where Federal OSHA has enforcement jurisdiction, there are 27 "States" where public sector employees are not currently covered under 23(g) grants (MA, ME, NH, RI, PA, DC, DE, WV, AL, FL, GA, MS, OH, WI, OK, AR, LA, TX, KS, NE, MO, MT, ND, SD, CO, GU, and ID). Some States, such as Oklahoma, have an active public sector enforcement program that is NOT under the auspices of a State plan, but is funded with 100% State money. This is a huge issue that will require changes to the OSHA Act, regulations, and directives, if it comes about. It will also require many additional compliance staff if it is to succeed. One additional question is, will it become an un- or under-funded mandate?
ReplyDeleteWhoops. Illinois is not yet funded under 23(g), so make that 28 States rather than 27 at the moment.
ReplyDeleteIL protected its public workers since 1987 under the IDOL. It is misleading to say they were not protected. I am sure many states are similar.
ReplyDeleteDidn't say they weren't protected. Just said the program is not funded under a 23(g) grant. Several States with Federal enforcement in the private sector, including Oklahoma and Illinois, provide excellent public sector enforcement with 100% State funds. If Congress amends the OSHA Act to include coverage of public sector employees in States where Federal OSHA currently provides private sector enforcement, I agree with the comment above that we shall see many new applications for 23(g) public sector only State Plans. HOWEVER, the 50% Federal share money would have to be appropriated to the State Plans line item to fund them. It all depends on how Congress words the legislation. It will be fascinating to watch if/how it all evolves.
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