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August 1, 2014

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WORKPLACE SAFETY:

Law gives new FedOSHA boss few sticks

Agency has little leeway in assessing worker safety penalties on state bodies

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If confirmed, labor secretary nominee Hilda Solis will oversee an Occupational Safety and Health Administration that many workplace safety advocates expect will become tougher on employers who put workers at risk.

In the wake of problems in Nevada and elsewhere, some also expect it will become tougher on state workplace safety agencies.

Under current law, that won’t be easy.

About half of the states — including Nevada — operate their own regulatory bodies to enforce safety laws in workplaces; the rest rely on the federal government for this oversight.

The relationship between state OSHAs and FedOSHA has long been a complicated one.

The federal government controls funding to the states and determines whether state policies and actions are “at least as effective” as federal OSHA, as law requires.

The state agencies are overseen by regional federal OSHA offices. Individuals having problems with a state OSHA can complain to federal authorities, who then investigate.

Trouble is, when FedOSHA detects a problem in a state agency, the only threat the feds can make is more or less an empty one — to take over operations. It’s a drastic, unlikely measure. In OSHA’s 38 years, it has only once come close to doing that, according to people familiar with the agency.

“There’s no gradation of discipline — there’s the nuclear option, and nothing in between,” said John Howard, former head of California OSHA and a former head of the National Institute of Occupational Safety and Health, a federal workplace safety research agency. “If you look behind the puppet screen you would see there’s nothing FedOSHA can do other than withdraw the program.”

Nevada OSHA, it seems, has made that calculation before.

In the fall, the U.S. Labor Department asked the agency to changes policies in the wake of a controversial settlement related to two worker fatalities at the Orleans in 2007.

Regional Administrator Ken Atha wrote a letter to Nevada OSHA stating that FedOSHA had “significant concerns” about the handling of the Orleans case. Atha asked Nevada OSHA to respond within a month detailing corrective action the department would take.

In response, Nevada OSHA Chief Administrative Officer Tom Czehowski (who was recently promoted to acting head of the Industrial Relations Division) sent a letter saying that the state disagreed with the federal government’s findings and would not immediately comply.

Publicly, at least, the federal response has been minimal. A spokeswoman said the agency still expects Nevada OSHA to comply with its requests. Debi Fergen, the mother of one of the workers who died at the Orleans, said she has asked officials at FedOSHA to follow up and not gotten a reply.

Past attempts to strengthen federal oversight have gone nowhere: A failed Democratic attempt at sweeping OSHA reforms in the 1990s included a provision to allow the federal government to issue citations in cases in which a state agency refused to do so.

The new administration could still significantly increase federal pressure on states using current law, workplace safety advocates say. Critics contend the federal agency was particularly weak on state enforcement during the past eight years and expect that even with its limited arsenal, it will start to lean more heavily on states.

“The federal Labor Department could monitor states much more aggressively and determine with more careful reviews the adequacy of state personnel, publicize gaps, and bring it to the attention of Congress and state legislatures,” said Eric Frumin, health and safety director for the garment and hotel workers union Unite Here. “But the federal government has to first be looking for the facts in order to make that judgment.”

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