Wednesday, October 28, 2009


First let me add my congratulations to the OSHA Underground for being named to the LexisNexis Top 25 List of Workplace related blogs. It's great that they got that recognition!

Next, from a commenter:
"Thanks for posting again! I was hoping my comment would elicit a post by about distracted driving as a topic? Apparently it is the #1 killer in the workplace- The US DOT had a summit 2 weeks ago but no one really mentioned it as a workplace issue, I would think this would be an OSHA concern as well?"
As a S&H professional, yes I'm concerned about distracted drivers, the problem is that most of the time, I don't have the jurisdiction to address the problem. Section 4(b)(1) of the OSH Act says:
"(b) (1) Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."
What that means is if another federal agency wants jurisdiction, they get it and we don't. And guess what? The Department of Transportation claims jurisdiction for all roadway safety (and then gives that jurisdiction to state and local authorities). Off public thoroughfares we have jurisdiction, but not on the street and highways. That's too bad for the commuters in California or Boston.

One of the bizarre quirks in Section 4(b)(1) of the OSH Act is that the agency claiming jurisdiction doesn't actually have to do anything to protect employees, they just need to claim jurisdiction. Ask the flight attendants and airline mechanics how well that has worked out for them.

This is a lot different than workplace violence, where we usually do have jurisdiction, but hide from it (that's a separate rant).


  1. It even gets worse when a trucker runs over someone at a factory at the loading dock.

  2. The forthcoming "Hope and Change" program from the new adminstration will address your employee driving safety issues! (Hee Hee)

  3. So who claims jurisdiction over road/highway construction crews -- DOT or OSHA? What if the crew is working in the right of way only and not on the road?

  4. I think OSHA should regulate driving in general and make companies buy 747's to fly their employees around. Have you seen the statistics on how much safer flying is than driving.

    Your chances of being involved in an aircraft accident are about 1 in 11 million compared to your chances of being killed in an automobile accident are 1 in 5000.

    So, how can OSHA justify letting a company use a piece of machinery that is so inherently dangerous?

    Business - sending them out like lambs to slaughter.

    Air travel is the way of the future - let's move forward already.

  5. RT: Mostly road construction is OSHA's, the post was more about drivers on highways.

    Funny Jesse, very funny.

  6. Well I don't want to be rude. I appreciate the information that I take from sites like this one, OSHAunderground, John Astad, etc., but I would love to have an intelligent, philosophical conversation with someone on the inside who is not scared to talk about why the lines are drawn where they are drawn.

    If you take the sarcastic tone out of my post above there is a good philosophical question in there. As a small business person, these are the things that keep me up at night. How am I going to afford to stay in compliance with OSHA as technology and information speed to the sound of light. I feel that the government, the FEDS, OSHA, whatever, are out-pacing business. And then there are things like this post that made some gears move in my head.

    So throw me a bone - I appreciate you and this site. HONESTLY!

    How can OSHA justify making a company re-tool to $60-70-80,000 fork trucks (for example) and still drive cars, when the car is more dangerous than the fork truck (both quantitatively and qualitatively)?

    If you get time I'd love to hear your thoughts.


  7. Thanks for the Congrats Abel on the OSHA Underground, being named to the LexisNexis Top 25 List of Workplace related blogs.

    As of Friday the OSHA Underground no longer exists on blogspot. I haven't heard form Kane since she last posted in August. So I have no idea why it closed down.

    Keep up the great work here. Thanks

  8. Jesse, I love philosophical discussions, so I would be more than happy to have one with you.

    Before we get too far into it though, let me ask you a question, have you ever had an OSHA inspection? I'm not asking for your company name or location or anything like that, I just want to know your experiences with OSHA.

  9. I have, indeed, been through an OSHA inspection.

    My experience/general disposition in a nutshell:

    Compassionate, caring person/administrator who through many humbling experiences and learning still has the confidence to invest in the notion the we can ELIMINATE workplace injuries/deaths therefore leading me to a more cost-benefit-analysis outlook towards OS&H.

    I think some amount of risk is worth lower unemployment.

    My experience with OSHA has been mixed. As an institution, OSHA has opened my eyes to many risks and hazards that I probably would never have thought about unless something bad happened. Therefore, OSHA has been a teacher (a good one). I do feel that OSHA teaches some courses in safety that they themselves have not earned the degree in yet.

    * If I have to listen to one more CSHO say that they sometimes have to teach the industry/engineers/scientists I'm going to give them my vote for "biggest ego/smallest brain" and gag myself with a wooden spoon.

    My experience with the individuals has been lackluster.

    I think that new OSHA standards put the cart before the horse.

    I don't think that punitive fines make people safer.

    I want to work with an OSHA that will sit down and see how they can help me help them. Not an OSHA that tells me to stop manufacturing something as a form of abatement. Of course it is. That's an insult to me, my business, and the hard-working employees that wouldn't have an income and insurance for their families if it wasn't for that manufacturing.

    I want to work with individuals at OSHA who have a better concept of GDP, economies of scale (we are a small business), economics, and the idea that it takes a lot of more hazardous manufacturing jobs to be able to support all of the non-income earning desk jobs.

    Finally, I want to learn more and contribute to an OSHA/Business Safety relationship that is as interested in education and training as it is compliance and warrant-less searches.

    thanks for your interest.

  10. revision:

    sorry... the confidence "NOT" to invest in the notion the we can ELIMINATE workplace injuries/deaths...

  11. also I should have said.... manufacturing jobs to be able to support all of the non-income "producing" desk jobs.

  12. Jesse you said"

    "* If I have to listen to one more CSHO say that they sometimes have to teach the industry/engineers/scientists I'm going to give them my vote for "biggest ego/smallest brain" and gag myself with a wooden spoon."

    Get your spoon out, what do you think I've been doing with this blog?

    It's easy to say that some risk is worth lower unemployment if you're not the one taking the risk, or the spouse of the person taking the risk.

    I have certainly run into my share of guys who thought high risk was just part of the job, even if that risk could have been removed. I interviewed a guy one time who thought that way, until he killed his best friend in a trenching accident. They had been friends since they were little kids, and they thought it was worth the risk. The guy I interviewed don't feel that way afterward.

    Part of the reason some of us believe that you can remove injuries/fatalities from the workplace is because we've seen it in industries that have historically high injury and fatality rates.

    What standards put the cart before the horse and how?

    Penalties do work, read John Mendeloff and Wayne B. Gray, "Inside the Black Box: How Do OSHA Inspections Lead to Reductions in Workplace Injuries?", Law and Policy, 27(2), 2005.

    There is other research out there that supports this too.

    By the way, as a employer you have the right to refuse OSHA entry into you facility. When you do, we'll leave, and then we'll go to a judge to get the warrant. It's just that most employers don't want to start an inspection antagonistically.

  13. Abel,

    It's been a while.

    The engineers say the same thing about OSHA.

    It's easy to say that no employment is worth the risk when you're not the one without a job (have you ever been to a third world country before?)

    I don't let the sob stories sway my outlook ( I learned that in critical reasoning freshman year of college). I let statistics, facts, and experience speak for themselves.

    We've also seen a great deal of high risk jobs move to other countries like China at a faster rate than injuries have declined.

    We were fined for COMDUST issues without receiving a letter like 30,000 others, before a standard has been written, and with information from a 3rd party (NFPA) that is taken out of context on what OSHA standards do exist. Cart officially before Horse (making congress happy).

    We made OSHA get a warrant one time and the 2 CHSO who went before the judge made false allegations that made it into the warrant. I'd happily share it with you. We would sue but everyone says "good luck". Some employers like to start an inspection with their constitutional rights. Constitutional rights/warrants are the precedent long before OSHA was around, and your comment and opinion held by much of OSHA is arrogant and demeaning of those rights. What if someone said something like that about free speech? Sad.

  14. Why is this RK NEP not posted on the OSHA website under national and special emphasis programs?

  15. Jesse,

    If you took critical thinking you should know that statistics, facts, and experience NEVER speak for themselves. Statistics can be made to say anything, facts are rarely complete and how they are perceived is dependent on how they are presented, and experience clouds everyone's judgment.

    It really doesn't matter if I've ever been in a third world country, I don't live in one and we shouldn't act like one.

    What you are suggesting, but not saying, is that every human live has a monetary value, we are all worth X amount of money, and our work lives are predicated on a formula that weighs our value vs the chance that the job will kill us.

    That's just not a view I can get behind.

    I think the Recordkeeping NEP isn't on the NEP page because it's on the Recordkeeping page.

  16. And welcome back, I enjoy our conversations.

  17. If the questions are clear and the information is good then you CAN make conclusions without the anecdotal red herring and other logical fallacies.
    I.E. if you believe that a less than 1 in 1 million chance of dying during flight is safe then, indeed, flying IS safe. REGARDLESS, of whether or not a flying accident has taken someone's wife or child or father or freedom fighter or any other amount of incidental sadness or gore you can pile on top of it. It may be relevant to you or someone you know but not so much to critical reasoning.
    Therefore I think it shows weakness when OSHA use the "if it bleeds it leads" tactic to sell an idea. Now something like "5 out of 10" hand injuries can be prevented by the use of gloves...I can stand behind that, but not "you should use gloves because look how bad this one guy got hurt from not wearing gloves". It's not that it is bad information. It's just not good information to base an argument on.

    I used the 3rd world country to prove a point which I suppose was logically flawed on my part. Let's say then Detroit instead. You don't think that there is a population of people there living in poverty that would assume some risk for some reward? Your right that we shouldn't act like a third world country but we also shouldn't act like we don't need jobs even if they are not at one of the top 10 or 100 or 1000 safest employers in the US. Many small businesses simply don't have the resources or knowledge to pass an OSHA inspection but that does not mean that they have NO worth as an employer. Also, many people don't have the resources or knowledge to get a job at one of those larger employers does that make them less worthy of a job?

    What I am suggesting is that the monetary value of a person's life should be whatever they decide it is worth. Then an employer should decide how much they think a person's life is worth. Finally, and employer and an employee can come to an agreement on whether or not they are a fit for each other. It is not a twisted idea to put a price on a life. Insurance companies do it...the legal system does it...adrenaline junkies and athletes and people in many of the most dangerous jobs know VERY WELL what risk they are taking on. Anyone who does manual labor instead of sitting at a desk assumes the risk of more bodily harm and anyone driving a vehicle for a living assumes even more risk than the labor. Ah, if there were only more desk jobs. The fact is that we can't ignore that people make many decisions that are predicated on a formula that weighs our value vs the chance that anything will kill or injure or inconvenience us in any way...INCLUDING our jobs. To deny this basic human function of analysis says that anyone that does assume risk for their profession or pleasure is stupid for assuming any known risk.

    If you can't value a life I see only two logical answers:
    1. You believe the live has NO value or
    2. You believe you will live forever
    3. You believe that live is invaluable

    I would love to hear a fourth and let me also say that if you say option 3 your logic goes against every wrongful death case which our court systems have ever settled and the fact that A. everyone dies and B. you can't write a check for "invaluable".

    That is critical reasoning.

    Thanks for the warm welcome -
    Hope your holiday's were happy.