Many experts believe that the Occupational Safety and Health Act is not effective because

Am J Public Health. 2020 May; 110(5): 631–635.

Abstract

The passage of the Occupational Safety and Health Act of 1970 brought unprecedented changes in US workplaces, and the activities of the Occupational Safety and Health Administration (OSHA) have contributed to a significant reduction in work-related deaths, injuries, and illnesses. Despite this, millions of workers are injured annually, and thousands killed.

To reduce the toll, OSHA needs greater resources, a new standard-setting process, increased civil and criminal penalties, full coverage for all workers, and stronger whistleblower protections. Workers should not be injured or made sick by their jobs. To eliminate work injuries and illnesses, we must remake and modernize OSHA and restructure the relationship of employers and workers with the agency and each other.

This includes changing the expectation of what employers must do to protect workers and implementing a requirement that firms have a “duty of care” to protect all people who may be harmed by their activities. Only by making major changes can we ensure that every worker leaves work as healthy as they were when their work shift began.

The Occupational Safety and Health Administration (OSHA) is both a great success and a failure. Fifty years after the agency began operations is an opportune moment to both recognize the contribution it has made to the prevention of work injuries and illnesses and acknowledge the gaps in the law that still permit millions of workers to be hurt every year. More importantly, now is the time to launch an initiative to reimagine OSHA to ensure that all workers have the real opportunity to leave work as healthy as they were when their work shift began.

On December 29, 1970, President Richard Nixon signed into law the Occupational Safety and Health Act of 1970 (OSH Act), creating OSHA. For the first time, workers in the United States had the right to a safe work environment, and their employers had the legal obligation to provide it. Although the existence of OSHA and the responsibilities of employers are largely an accepted part of the workplace environment, the revolutionary nature of the OSH Act and the unprecedented changes it produced in the nation’s workplace have largely been forgotten.

There is little question that OSHA’s efforts have saved tens of thousands of lives and prevented millions of injuries. In the first year of OSHA’s existence, 38 workers were killed on the job every day; now, with a workforce more than twice as large, that figure has dropped to 14 each day.1 There has also been a significant drop in workplace injuries. There is extensive evidence that OSHA standards are effective in preventing injuries and illnesses and that OSHA inspections lead to decreases in injuries for several years after a workplace is inspected.2–6

But the challenge for preventing work-related injuries, illnesses, and deaths remains large, and the toll is significant. More than 5000 workers are killed on the job every year, and the fatal injury rate has stopped decreasing. Currently, employers report that more than 3 million workers are injured on the job each year, and, according to the Bureau of Labor Statistics, this is a significant undercount of the actual number of injuries.7 The rates of fatal and nonfatal injury are no longer decreasing, and changes in the workplace and the workforce have made OSHA’s tools and approaches increasingly less effective. The injury rates in many industries, such as agriculture, logging, and health care, remain alarmingly high. There are no reasonably accurate estimates of the number of work-related illnesses that occur each year, although perhaps 50 000 workers die annually from past exposures to toxic substances.8,9 Much of the burden of these conditions falls on low-wage workers, making work injuries and illnesses a component of the growth in the nation’s economic inequality: injuries and illnesses block many low-wage workers from entering the middle class and even push some better paid workers into poverty. The failure of the workers’ compensation system to provide adequate benefits for many of these workers forces them into taxpayer-supported programs such as Social Security Disability Insurance.10,11

The OSH Act generated a new and controversial federal government power: the right of government inspectors to enter private sector workplaces and require that hazards be controlled. But much of that initial promise was unfulfilled because of budget restrictions, judicial rulings, executive orders, appropriations riders, and strong opposition from the business community. Perceived government interference in the property rights of business owners has made OSHA the target of political and legal opposition for its entire history. As a result, the agency took a legalistic approach to workplace conditions, focusing primarily on compliance with its often limited and out-of-date regulations, unable to address the power dynamics at the workplace that has allowed the continued presence of hazardous working conditions.

The weaknesses now facing OSHA are significant and well recognized. OSHA’s standard-setting process is broken; it takes years or even decades, and huge resources, to issue new standards able to withstand strong antiregulatory political opposition and well-funded industry lawsuits. The result is that the agency has few up-to-date standards for protecting workers from chemical exposures or safety hazards.

These limitations are compounded by a severe lack of resources. OSHA’s annual budget is less than $600 million, a fraction of the Environmental Protection Agency’s $8 billion budget. Federal OSHA, along with the 22 state plans covering private sector workers and 6 additional state plans that cover only private sector workers, have jurisdiction over between 7 million and 8 million workplaces where more than 130 million workers are employed. Federal OSHA and state plans combined have only around 2000 inspectors. And the problem has gotten worse. In 1980, OSHA had 14.8 inspectors for every million covered workers; by 2018, that ratio had dropped to 5.6. With current staffing, it would take federal OSHA 165 years to visit every establishment in its jurisdiction just 1 time.12

When inspectors do find hazards, OSHA’s small monetary penalties and weak criminal sanctions hardly deter employers who attempt to cut corners by endangering workers. Although the law, as originally envisioned, provides robust opportunity for worker involvement in the enforcement process, the OSH Act’s language intended to prevent retaliation against employees who exercise those rights are weak and outdated. Fifty years after the OSH Act was passed, large swaths of the American workforce still lack even the basic right to a safe workplace. Eight million public employees do not have OSHA protections despite the hazardous work they perform every day. Agricultural workers on small farms also lack OSHA protections.

Finally, the OSH Act was originated over half a century ago to address working conditions and employee–employer relationships that are radically different from those that exist today. It was enacted in an economy that was dominated by highly unionized manufacturing and construction sectors. The political power of public sector employees was so insignificant that public sector workers were not even covered under the OSH Act. The law was passed largely because of union organizing, and the substantial worker participation rights written into the law generally assumed union involvement in OSHA inspections and other activities.

Today, we live in a much different world. Manufacturing employment has shrunk significantly, with the concomitant rise of employment in the retail, service, and government sectors and the different mix of hazards that accompany them. However, with much smaller employment in the manufacturing sector, and with only 1 in 16 private sector workers represented by a union,13 most workers are unable to exercise their rights under the law, and union-associated safety and health activities directly affect conditions for only a small percentage of workers. Evidence and common sense show that a stronger labor movement, with activist unions representing a far larger proportion of the workforce, would result in safer workplaces.14

Not only has the structure of the economy changed significantly since 1970, but the traditional employer–employee relationship that was common in 1970 is far less common. Today, individuals may work for dozens of different companies throughout their lives, with an increasingly large share employed in nontraditional employment relationships. Contractors and subcontractors perform all types of work, and many employers falsely claim that their employees are “independent contractors,” enabling them to avoid OSHA coverage and other employer obligations.

Staffing agencies provide temporary workers in every type of industry, and new sorts of staffing arrangements seem to be appearing on a regular basis. Millions of workers are involved in jobs in the “gig economy,” in which their employment is mediated through online platforms. We’re increasingly seeing the fissuring of employment with employees of multiple employers, as well as independent contractors, working together in the same workplace.15

The resulting fissured workplace is a far more dangerous place. Employers often fail to communicate about hazardous working conditions with other employers at the same site and, especially for temporary workers and day laborers, provide little or no safety training. These workers are often unaware of the protections that are supposed to be provided on the job or who is responsible for providing those protections and, given their precarious status, are often concerned that identifying hazards or reporting injuries may result in job loss. Current labor law, created many decades ago, often makes it challenging for enforcement agencies to determine which employer (if any) is responsible for providing a safe workplace,

Workers in the gig economy face even greater challenges in ensuring their health and safety. Corporations, such as Uber and TaskRabbit, that employ technology systems (called “platforms”) that assign workers to work activities are attempting to classify workers as independent contractors, who as a result have no OSHA coverage. When successful, these firms have little or no legal responsibility to provide safe work and bear no workers’ compensation costs or legal liability when these workers are injured. Further, a significant proportion of workers in dangerous industries, including agriculture, construction, and meat and poultry processing, are undocumented, and some are non-English speaking.16 Especially in the current political climate, many are hesitant to refuse hazardous work or even raise their voices to contact OSHA when they identify hazards.

These changes in the structure of the American economy, in the workplace, and in employer–employee relationships are so significant that the case can be made that we have reached the limits of the (limited) effectiveness of OSHA’s current approach as it was originated half a century ago.

We highlight 4 steps that would prevent a significant number of injuries, illnesses, and fatalities. Some of these and others have been proposed in the Protecting America’s Workers Act, legislation that has been introduced multiple times since 2004 but never passed by Congress.17

DEVELOP A NIMBLE STANDARD-SETTING PROCESS

Standards are OSHA’s most important and effective tool for protecting the safety and health of workers because standards alter the behavior of many employers across 1 or many industries. Standards, by definition, are norm setting: they change expectations of employer behavior. Many employers make great effort to be law abiding and, therefore, to meet the legal standards promulgated by OSHA.

The American economy is huge and changing rapidly, and it takes a nimble rule-making process to keep up with hazards accompanying new technologies and chemicals. Unfortunately, OSHA’s regulatory process is far from nimble. OSHA’s standards writing staff is nowhere near large enough to fill the need for new or updated standards, and the agency’s processes for developing new standards or updating old ones are among the most burdensome and resource intensive of any agency in the federal government.

In particular, most OSHA chemical exposure standards are inadequately protective and out-of-date. More than 90% of current permissible exposure limits date to industry consensus standards set in the 1960s, and there are no permissible exposure limits for the vast majority of chemicals used in today’s workplace; OSHA’s attempts to address this have been unsuccessful.18 As a result of OSHA’s inability to issue adequate chemical standards, along with the accompanying difficulty of using OSHA’s general duty clause to issue citations where no standard exists, means that the agency conducts relatively few inspections to monitor chemical exposures.

A sizable portion of OSHA’s safety standards are also antiquated. Many were issued in the early 1970s and were based on industry consensus standards. But industry associations have moved forward to update those consensus standards every few years; OSHA has not. Although many employers and, especially, equipment manufacturers strongly desire new safety standards to ensure that their workers are able to work safely, OSHA does not have adequate staff to update standards on newer technologies.

In addition, OSHA has no standards on hazards that cause large numbers of injuries and illnesses, including ergonomic hazards, the source of perhaps one third of all conditions reported on OSHA logs12; heat exposure, even though dozens of workers die from heat exposure every summer and, this number is likely to rise with the climate crises19; and workplace violence, which affects many workers in health and social service employment.20 In addition, OSHA’s noise standard is out-of-date and unprotective, and the agency’s hearing protection enforcement policy makes it even more unlikely that an employer will be cited in most situations in which hazardous levels of noise are present.21 OSHA has few standards that protect the highly dangerous area of oil and gas drilling, nor do OSHA standards cover many hazards in agriculture.

To be effective, OSHA must be able to issue many new standards quickly. Those who envisioned the law in the 1960s would undoubtedly be aghast at the decade or more it often takes OSHA to issue a single standard. For chemical hazards, a short-term solution would be for OSHA to issue regulations requiring employers to consider the safe use directions and warnings provided by manufacturers on labels and safety data sheets, applying the hierarchy of controls and the general approach of OSHA’s comprehensive chemical exposure standards—including, as appropriate, labeling, education, and training and medical surveillance. Employers could choose not to follow these directions but only by showing their alternative approach is at least as protective. A short-term fix for OSHA’s safety standards is to allow OSHA to easily adopt voluntary consensus standards, including updates of American National Standards Institute and other consensus standards, if the consensus panel is representative of the industry; structured to give adequate weight to the voices of workers; and provides adequate, enforceable protections.

INCREASE DETERRENCE

The main principle underlying OSHA’s enforcement efforts is deterrence: encouraging or requiring employers to eliminate exposure to hazards that cause injury or illness—before workers are injured, made ill, or killed. Enforcement inspections, OSHA’s main tool of deterrence, are effective in preventing injuries at inspected workplaces for several years after the inspection.2–6 Knowledge that OSHA inspects and issues penalties drives employers to abate hazards before an inspector actually appears at the establishment’s door, magnifying the deterrent effect of inspections.22 OSHA also has extensive cooperative programs to assist small employers to make their workplaces safer and recognition programs for employers who commit to going beyond OSHA requirements; although useful, these programs affect relatively few workplaces and make only a small contribution to preventing injuries in other worksites.

OSHA has 2 penalties it can employ against employers who violate the law and endanger workers: civil monetary penalties and criminal penalties. Monetary penalties are effective only if employers believe they may receive a significant penalty for allowing a hazard to go unabated. Otherwise they become just a (small) cost of doing business. But given the tiny size of the OSHA inspectorate, it is highly unlikely that an employer will ever see an OSHA inspector unless a worker is killed or severely hurt. And when OSHA does inspect, monetary penalties are so small for all but the smallest employers that the impact is unlikely to motivate many employers to address unsafe conditions.

In 2015, Congress raised the maximum OSHA penalty from $7000 to $12 471—adjusting for the rate of inflation since 1990 (when monetary penalty levels were previously set)—and Congress now requires the maximum be adjusted annually for inflation; however, OSHA penalties remain ineffective as deterrents, especially for large corporations. Although it is possible in some rare egregious cases for OSHA to levy penalties in the millions of dollars, even those sizable fines are too inconsequential to act as a deterrent for the largest corporations.

Criminal penalties with jail time for corporate directors are arguably more effective penalties, especially for large companies, but the current law provides for criminal prosecution only in instances in which a worker is killed and the employer has been cited for a willful violation of an OSHA standard. Even in these cases, the crime is considered a misdemeanor, punished by a maximum of 6 months in prison. The high bar and low penalty mean that federal prosecutors use this provision in the rarest of occasions, making it almost meaningless as a deterrent.

Given the low odds of an inspection, the relatively low costs of penalties following inspections even when many violations are found, and the externalization of costs of not abating hazards, it is not surprising that many employers fail to prioritize the control or elimination of workplace hazards. Changing the calculus involving each of these factors will increase the effectiveness of OSHA’s enforcement program and will prevent workplace injuries.

PROVIDE FULL OSHA COVERAGE FOR ALL WORKERS

Fifty years after passage of the OSH Act, millions of workers still do not enjoy the right to a safe workplace, and employers have no legal obligation to provide safe working conditions. In those cases, when a worker is killed, no investigation occurs, no penalties are applied, and no lessons are learned.

The largest gap in OSHA coverage involves public sector workplaces. Under the OSH Act, public employees are not covered by federal OSHA even though they do work that is as dangerous or more dangerous than private sector work. The 21 states that run their own OSHA programs with matching federal funding, and Puerto Rico, which does as well, are required to cover their public sector workers, and other states may cover only their public employees with federal oversight and matching funding. Only 5 states and the Virgin Islands have taken advantage of this option; almost 50 years after private sector workers were given the right to a safe workplace, 8 to 9 million public sector workers in 24 states and the District of Columbia remain employed in OSHA-free zones.

Workers on small farms are at greatly increased risk of dying on the job. Yet every year, Congress includes language in the annual appropriations legislation that prohibits federal OSHA from expending any funds to inspect or enforce on farms with 10 or fewer workers. When OSHA receives a complaint from a desperate worker or a report of a farmworker killed in a confined space or drowned in a manure pit, the first question OSHA must ask is how many workers are employed by the farm. If it is a small farm, OSHA is prohibited not only from any enforcement actions but even from making a telephone call to ask what happened or giving advice on how to prevent the next death. Only some state plan states set aside nonfederal funds to inspect small farms.

STRENGTHEN OSHA’S WHISTLEBLOWER PROTECTIONS

The people with the greatest knowledge of the presence of workplace hazards are the workers who are exposed to those hazards. To help protect themselves and their co-workers, workers must be able to discuss their concerns with their co-workers, raise their concerns with their employers, and alert OSHA or other government agencies about the presence of these hazards, all without fear of retaliation. Workers’ rights under the law are meaningless without an effective way to prevent employers from retaliating against workers for exercising their rights. Unfortunately, the whistleblower protection provisions in the OSHA law are very weak and outdated, especially in comparison with the protections provided in more recent legislation protecting workers who voice safety or health concerns. Under section 11(c) of the OSH Act, for example, workers must file their claim within 30 days of the retaliation, the burden of proof is unnecessarily rigorous, OSHA cannot order preliminary reinstatement of wrongly discharged employees, and there is no individual right of action.23

Implementation of these recommendations would be useful, but given the changes in the structure of the US economy and in employer–employee relationships over the past half century, we also need to modernize the institutions charged with ensuring the safety and health of workers. If we truly want to eliminate work injuries, we must take steps to restructure OSHA and the relationship of employers and workers with the agency and, more importantly, with each other. Stronger unions enable workers to be less dependent on government intervention to make their workplaces safer. As we consider ways to reshape our system of worker protections, it must be done so that workers have more power at the workplace, so they can protect themselves rather than relying solely on an inevitably underfunded and politically vulnerable government agency.

The OSH Act is based on the concept of compliance with OSHA standards and regulations. However, it is widely recognized that many fatalities and serious injuries will not be prevented by simply complying with all OSHA standards, nor will there ever be OSHA standards to cover every hazard. Employers who are truly committed to preventing injuries and illnesses (like many of those in OSHA’s cooperative programs) go beyond simple compliance with OSHA standards. They understand the need for dynamic safety and health management systems, continuous improvement processes whose objective is to find and fix all workplace hazards—even those for which there are no OSHA standards—before workers are hurt.

It is sometimes said, “Every company has a safety and health management system. Many of them just don’t know it.” And many of those are based on hope and luck. These employers hope their employees are lucky enough to avoid serious injuries or illnesses. Among safety and health experts, it is axiomatic that safety and health management systems, in which managers have demonstrated commitment and workers are empowered participants, are the key to successful prevention of work injuries and illnesses. Many professionals feel that a safety and health management system requirement should have been the first standard OSHA issued. To increase its effectiveness, OSHA needs to require employers to actively implement safety and health management systems.

In addition, because under the OSH Act, employers are solely responsible for providing safe workplaces to their employees, OSHA’s definitions of “employer” and “employee” from 1970 are antiquated in light of the dramatic fissuring of workplace employer–employee relationships seen in recent years.

Rather than link safety responsibility solely to the employer–employee relationship, a preferable regulatory approach, as adopted in Australia and New Zealand, is to require a “duty of care” of all businesses. Under this model, all “persons conducting a business or undertaking” (called “duty holders”) have a primary duty to ensure, as far as reasonably practicable, that the health and safety of their workers—as well as other workers influenced or directed by that business, consumers, and the general public—are not put at risk by that business’s activities.

There is no question that because of OSHA, countless workers have returned safely to their families at the end of their work shift. But we can do better. The political winds have blown against OSHA for decades, and only through a major change in the political direction of the country are we likely to see protecting worker safety and health made a public health (and political) priority. However, given the unacceptable toll of preventable work injuries, illnesses, and deaths, as well as the changes in the workforce and work relationships, it is imperative that we examine and restructure OSHA and the nation’s efforts to protect the safety and health of the nation’s greatest resource: our workers.

ACKNOWLEDGMENTS

D. Michaels received salary support from the Institute for New Economic Thinking and the McElhattan Foundation for his work on this essay.

Many of the ideas presented in this essay originated through close collaboration with career staff at the Occupational Safety and Health Administration and members of the safety and health communities; the authors are grateful to these professionals and activists, who are deeply dedicated to the safety and health of workers.

CONFLICTS OF INTEREST

The authors have no conflicts of interest to declare.

HUMAN PARTICIPANT PROTECTION

No protocol approval was necessary because we do not describe a study involving human participants.

Footnotes

See also Rothstein, p. 613, and the AJPH OSHA @50 section, pp. 621–647.

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Articles from American Journal of Public Health are provided here courtesy of American Public Health Association