OSHA Enforcement: What to expect

The ramping up of OSHA enforcement is already underway. The agency has generated a publicity blitz since January, 2009 with press releases focusing on trenching violation penalty cases and combustible dust enforcement actions.

Several OSHA compliance officers who anonymously pen blogs on agency activity (“OSHA Underground” and “OSHA Aboveground”) have proclaimed enforcement is back. “No more excuses. The dynamic has changed,” wrote the OSHA Underground blogger.

One of organized labor’s top priorities for the agency is enforcement with much more bite, and in Labor Secretary Solis labor has a sympathetic ear. One source tells us Solis knows little about the technicalities of occupational safety and health, but has said OSHA should be in the enforcement business.

At her Senate confirmation hearing, Solis said publicly: “The Labor Department is charged with assuring compliance with dozens of employment laws. I believe these laws codify values that are fundamental to our society. A fair day’s work deserves a fair day’s pay. Workers should not have to sacrifice their lives or their health to keep their jobs.”

She also told Senators: “My father was a Teamsters shop steward who regularly told us about the opportunities his union association would bring to help secure our family a place in America’s middle class.”

One source tells us once a new OSHA chief is confirmed, probably late summer or early fall, enforcement will “start with a bang.” Look for an enforcement strategy focusing on hexavalent chromium exposures (in support of OSHA’s 2006 standard that lowered permissible exposure limit) and confined space hazards in construction (where the agency does not now have a standard in place).

OSHA enforcement historically has been a strategy tool to focus attention where agency standards cannot or do not tread, or are ineffective in mitigating patterns of violations. The agency came down with harsh penalties on recordkeeping in the mid-1980s after extensive under-reporting was uncovered. Look for recordkeeping enforcement to again make a strong comeback in the wake of the widespread belief that under-reporting is common. Déjà vu all over again.

Construction activity, long a prime focus of OSHA inspections, will come in for heavy enforcement action. This is due to: 1) the federal stimulus package that promises a boom in infrastructure building and rebuilding; 2) unregulated or out-of-date standards pertaining to silica, beryllium, lead, cranes and derricks, hearing conservation in construction and confined spaces in construction; and 3) the tremendous influx of immigrant workers (between 1999-2001 one out of two net new labor force participants in the U.S. was a foreign immigrant) and what Dr. John Howard describes as the rise of “precarious employment” — temporary workers, day laborers, and contingent workers with no promise of long-term stable employment. Given Labor Secretary Solis’s immigrant parents and her activism in Los Angeles fighting sweatshops, it is no stretch to envision an OSHA much more aggressive in trying to enforce protection of these vulnerable work populations often found on construction sites.

Finally, OSHA probably will increase its use of enforcement to address musculoskeletal disorders, again in the absence of a standard.

This post comes from an anonymous compliance officer on the blog “OSHA Underground: “OSHA issued a handful of ergonomic citations under Ed Foulke. He made the process lengthen to a point where our people quit even doing proposals for citations. We see the Solis era marked by a surge of training to the compliance safety and health officers (COSHs) and triple the efforts of the previous administration.”