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Is self-regulation failing?

The USA Workers Memorial Day is more than a month away, but the April 30 event held annually will occur at a time when remembering the fallen from work-related injuries or illnesses is made more difficult by the Trump administration.

According to he Occupational Safety and Health Administration (OSHA) dropped fatality information that used to appear on its website as a list of U.S. workers who died on the job, and the agency is “hiding” a severely edited version of the data.

OSHA removed an up-front list of workplace fatalities from its home page, and moved some of it onto a data page – without names of workers killed, and only for deaths where citations were issued.

During the Obama administration, OSHA published a comprehensive list of worker fatalities and related data. In August, shortly after President Trump installed Loren Sweatt in a political appointment to Deputy Assistant Secretary, OSHA started cutting back worker fatality information formerly published automatically.

The theory had been that employers would more likely comply with safety standards if they feared bad publicity from accidental deaths at their facilities. The U.S. Chamber of Commerce argued that such disclosures were unfair and requested the cutback in transparency.

“They saw this as a way to scare employers straight,” said Marc Freedman, director of labor law policy for the Chamber of Commerce.

Others might concede the approach might have been ineffective – if employers had no shame.

Dr. David Michaels, President Obama’s Assistant Secretary of Labor for OSHA from 2009-2017, has tried to stand up for the agency amid attacks by Congressional Republicans seeking “voluntary” compliance with job safety and health standards.

Capitol Hill’s ruling GOP prefers a voluntary program letting employers get safety advice without being required to follow it. In exchange, employers virtually escape inspections – as infrequent as those are.

Michaels, now a professor of public health at George Washington University, said that OSHA is underfunded and understaffed. The agency’s budget has remained flat, at $550 million yearly, for almost a decade and its workforce has shrunk, he said, and chronic budget woes trimmed the ranks of OSHA job-site inspectors down to about 2,200 – or approximately 1 compliance officer for every 59,000 American workers.

That means that the typical U.S. workplace would see an OSHA inspector once every 159 years. “It is not hyperbole to use the word ‘carnage’ to describe the hazardous conditions in the workplace before OSHA,” Michaels said.

In 1970, 14,000 workers were killed on the job, or 18 per 100,000, he noted. Last year it was 5,190, or 3.6 per 100,000, not counting those who die later from occupationally caused diseases, such as black lung, asbestosis and various cancers.  Also, under the Trump regime, OSHA only lists fatalities in states where OSHA oversees workplace safety (about half of the states do this for themselves).

Meanwhile, according to Sam Pizzigati, a Fellow at the Institute for Policy Studies, “In 2016, the latest year with full stats, 991 construction workers nationwide died from fatal work injuries, a 3 percent increase over the year before.”

Despite concerns those numbers raise, a complete picture is difficult with less information routinely available. For example, OSHA under Trump also drastically reduced announcements and news releases noting OSHA enforcement actions.

Meanwhile, Trump nominated Scott Mugno, an executive with FedEx, to be Assistant Secretary of Labor for Occupational Safety and Health, but as of press time, the full Senate had not confirmed the appointment, so Sweatt is also acting OSHA chief. The nomination continues the parade of insiders and walking conflicts of interest Trump has named to administration posts – when he nominates anyone. As with many other positions in Trump’s administration, OSHA’s chief of staff and senior adviser jobs remain vacant.


South Africa is awaiting the promised amendments to its OHSA, which will inter alia introduce employer reporting of incidents statistics to the Department of Labour, similar to the US 300A report form. These reports will be submitted to the DOL each year before 1 March. In a statement made by the Chief Inspector of the DOL, Tibor Szana, he said Self-regulation is not working.

The Amendment bill addresses this by the various instances where the liability is altered by removing the “reasonably practicable” phrase. Szana said for the past 20 years the self-regulatory environment has failed to yield results. He said while the Bill would not adequately address problems faced by SMMEs, the amendment was a step in the right direction. He cautioned that the country could not have legislation in place, and at the same time allow people do things the way they have been doing. This was 2 years ago, during the 3-day OHS conference in November 2016.

Removing the employers prerogative to determine if a control measure is reasonably practicable, introduces strict liability, which removes self-regulation. Employers will no longer be able to argue it was not practicable, and will “just have to do it” or face the consequences.

Privacy Laws

Rudy Maritz responded to Knight’s article saying “One cannot ignore the impact of privacy laws in both the US and South Africa on the impact of the OSHA regime. Why would it be important to know who died? For the purposes of OHSA administration is it not more important to know how many died and why? Is the names of these people important? Surely not. And releasing names prolongs the pain and suffering of the living. Removing the names surely cannot be seen as forgetting the fallen heroes? This is not the Vietnam war we are fighting although it seems like it at times.”

“I have to agree with Mr Szana. Self-regulation is not working. Employers pretend not to know the OHSAct, yet make no effort to engage competent safety staff or consultants. They do nothing as it is cheaper to face the DoL in court. The chances of them “getting away” with a contravention under the current Act is far better, unless there was a fatality which introduces other legal rules. We had the Factories, Machinery & Building work Act of 1941, which were very prescriptive. This was replaced by the MOSAct in 1983, and thereafter the concept of AFARP was introduced with the current Act, most likely copied from the ALARP principle of the UK. Removing this, we create a “do or die” form of liability. It removes the “choice” from the employers’ book of tricks.” Maritz said.

While the changes may be imminent, it has been for the past 3 years, and this inability of the DOL to create rules, spills over into their capacity to enforce it. IF the typical workplace receives a OHSA inspection every 159 years, this “waiting period” is surely much higher in SA.

 

Sheqafrica
Sheqafrica.com is Africa's largest online Magazine for the Risk & Compliance profession. It is co-owned by Shane Lishman and the Africa Media Group.
The editorial team:
Shane I. Lishman

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