With a new President-elect about to take over the executive branch, speculation about what changes that transition will mean for the Occupational Safety and Health Administration and other enforcement agencies is simmering.
It's widely speculated that the Bush administration has presided over 8 years of a lenient OSHA — a pussycat — and that President Barack Obama will turn OSHA back into a tiger of an aggressive enforcement agency.
Much of the belief that the Bush administration was light on enforcement involved its weak funding of OSHA. OSHA's annual funding has been on the decline since its peak at the end of the second Clinton term. Since FY2001, it's fallen about 5 percent before being adjusted for inflation, according to federal budget data. The part of the budget directed at enforcement, and the number of compliance officers on the street, similarly have declined. Is this enough evidence that Bush turned OSHA into a business-friendly, declawed pussycat?
No, it is not proof, as a glance at the latest FY2008 data reveals. Rumors about OSHA losing its significance to American industry are false. Having believed what little I've heard about the current OSHA administration, I found it surprising that the number of inspections has not declined over the past 4 years.
The total number of inspections has been on the increase overall since the beginning of the first Bush term and then some. Looking at the past 10 years, there were 11 percent more inspections in FY2008 than in FY1998.
MORE AGGRESSIVE ENFORCEMENT
Using more detailed data that shows OSHA's results from FY2004 through FY2008, trends point to a more aggressive enforcement posture, not less. Over that time period, OSHA's in-compliance inspections declined steadily from 31 percent to 24 percent. The reasons are not given, but speculation leads us to two logical explanations.
One is that compliance officers were assigned to workplaces where there were more safety violations, an indication that OSHA's targeting system is getting better at finding the safety hazards. The other explanation, and one that is just as likely, is OSHA's management actively pushed its compliance officers to deliver more inspections with violations, and less in-compliance.
The number of violations also defied conventional wisdom. One would think that while national injury and fatality stats are steadily improving, OSHA's inspection results would reflect the generally safer conditions in American workplaces. However, that is not the case. The local offices still are producing increasing volumes of citations. Total violations have grown by 13 percent since FY1998.
SERIOUS CITATIONS ON THE RISE
The percentage of serious violations and the penalties collected for serious citations have risen. The percentage of serious violations increased from 65 percent in FY1998 to 77 percent in FY2008, an overall increase of 16 percent over 10 years. Inspections with only “other-than-serious” violations (no penalties) have dropped correspondingly.
Again, these numbers either are indications of better targeting, or a sign that OSHA has been pushing for tougher classification of violations. In either case, the numbers are hard evidence that Bush's OSHA still was as tough an enforcer, and more so, as was the Clinton OSHA.
Penalties-per-violation grew during the Bush term as well. In FY2004, the average serious citation carried a penalty of $848. By FY2008, the average serious citation in private industry cost $987, an increase of 14 percent. Penalties are calculated using a formula based on the estimated severity and frequency of the hazard, the company's recent OSHA history and “some “good faith” elements related to the company's safety program. The formula allows some discretion on the part of compliance officers and their managers.
Then there are the regulations cited. To some recipients, paperwork violations are the most irritating, as they do not always appear to be related to the injuries that commonly occur at the cited facility. The testimony given by scores of dissatisfied employers during the OSHA reforms of 1994 included many criticisms of despised paperwork citations.
Some might theorize that employers sometimes neglect paperwork, or make mistakes in creating or maintaining it, which would mean violations would be deserved. It also may be that OSHA compliance officers might use “nit-picking” paperwork violations as a way to increase the number of citations and meet their average-citations-per-inspection goals on an otherwise slow day.
Regardless of the reasons, paperwork-related citations, as usual, were the most popular cited in general industry in FY2008. This somewhat is contrary to what one might expect of a more tempered, “business-friendly” OSHA.
At the top of the list, chemical hazard communication was the No. 1 standard cited in general industry. It was followed by respiratory protection and lockout/tagout, both of which have substantial paperwork requirements but that also have requirements of a more practical nature. Hazard communication only made fifth place in construction citations, with the top three citations being directed at scaffolding, fall protection and ladders.
Rumors and accusations as to the demise of the old, enforcement-centered OSHA appear to be false. Looking at the federal government's own data, in fact, makes it pretty clear: Bush's OSHA has been out there enforcing regulations, just like the previous administration's OSHA, but significantly more aggressively.
What will happen during the next 4 years remains to be seen. One conclusion about how OSHA will exercise its duties in the future already is obvious: the best way to understand the way OSHA currently is currently operating is to ignore the rumors, opinions and speculations and take a good look at the numbers.