by Katherine Torres
Responding to hurricanes Katrina, Rita and Wilma; being criticized by labor advocates for exempting enforcement in areas hit hard by the hurricanes; and conducting business as usual while operating without a permanent administrator were some of the challenges OSHA struggled with in 2005.
Fortunately, 2006 brought the promise of a brighter year and the arrival of Edwin Foulke Jr., an attorney from South Carolina nominated by President George Bush in September 2005 to head the agency.
As 2006 comes to an end and with almost 9 months on the job, Foulke, who previously chaired the Occupational Safety and Health Review Commission, is receiving mostly positive reviews and nods of approval from Congressional and labor leaders.
Foulke also has earned respect among safety professionals and workers by touring the country and spreading the word that he isn't one to "sit on things" and announcing his plan to improve OSHA's image of being "out of touch with reality."
"I want more employers and employees to recognize OSHA as being the resource for workplace safety and health," Foulke says, stating that this is one of the priorities he plans to accomplish during his tenure with the agency.
Getting the Word Out
In 1971, when OSHA was launched during the Nixon administration, no uniform provisions existed in the United States to protect employees against workplace hazards. Statistics from the Bureau of Labor Statistics indicate there was an average of 14,000 employee deaths a year at that time.
Although the U.S. work force has more than doubled since 1971, OSHA has seen work-related fatalities reduced 60 percent and injuries and workplace illnesses drop 40 percent. However, Foulke says he is surprised to see that despite OSHA's long-standing presence, many employers are not aware of the resources the agency has to offer.
"If you went out there and asked about 60 percent of employers in the country, 'what resources does OSHA offer for free,' they will have no idea," he says.
Foulke claims it is essential for OSHA to focus on employer and association outreach if the agency is to reach employers who are either not knowledgeable about the importance of safety and health programs and how they can benefit from them, their employees and their bottom line, or are just simply "bad apples."
Motivating Employers
Reaching employers is half the battle, Foulke admits; motivating them and getting them to understand why they need a comprehensive safety and health program is the other half. It can be accomplished, he says.
"Our goal is to get our people out to those places and give a focused message on what we are trying to talk to them about so we are able to touch their hearts and explain to them why they need a comprehensive safety and health program," he says.
As part of the agency's outreach efforts and compliance assistance initiatives, Foulke wants to partner with more companies and federal and private organizations, as well as get more companies involved in OSHA's Voluntary Protection Program (VPP). The purpose, he explains, is to help employers keep workers' compensation costs down in an effort to keep them more profitable, which, in turn, will enable them to be more competitive in the global marketplace. According to Foulke, companies participating in VPP have saved more than $1 billion since 1982. At the same time, workers will be assured of a safe workplace environment, he claims. This was a focus he's had since his days as a partner in the firm of Jackson Lewis LLP representing employers in occupational safety and health cases.
"I knew the best things for my clients was to help them make sure their employees were safe and reduce [occupational] injuries and illnesses," he says. "It's also better for the employees because then their jobs are secure."
As an attorney who claims to have handled more fatality investigations than any other lawyer in the country, Foulke says he saw upfront and personal how devastating fatalities could be not only to the victims' families but also to their co-workers. Such a loss, says Foulke, could even impact an entire town.
"That's why I say one fatality is one too many because I've seen the devastating effect it has across the board," he explains. "The more we can work on eliminating fatalities, the better it is as a whole."
Foulke contends that the agency's enforcement program is a strong one and boasts that one of the program's strongholds is that it allows OSHA to force a company to set up safety and health programs throughout the organization and not just at the site found in the violation. But he explains that enforcement is not enough, as it is impossible for the agency's 1,300 compliance officers to reach all 7.2 million worksites in the country. And, getting more compliance officers is not an option for the agency, says Foulke.
"With compliance assistance and through VPPs, partnerships and alliances, you could reach so many employers," he says. "The more employers we reach, the more employees we reach."
The Standard-Setting Debate
One criticism leveled at the agency has been that it moves slowly to adopt new occupational safety and health standards. What was perceived as a slow process in past years appears to have come to a crawl.
The process works like this: If the agency decides a standard is necessary, any one of several advisory committees may be called upon to develop specific recommendations. Once OSHA has developed plans to propose, amend or revoke a standard, it publishes these intentions in the Federal Register as a "Notice of Proposed Rulemaking," which requests comments about the proposal from shareholders. Prior to publication of proposed and final major rules, OSHA consults with the Office of Management and Budget (OMB) under procedures established by an executive order from the president. The agency utilizes a panel that includes the Small Business Administration and OMB to determine the impact of regulations on small business, as required by the Small Business Regulatory Enforcement and Fairness Act (SBREFA).
Even Foulke admits that he never realized there were so many details involved in the rulemaking process. But since he has been with the agency, Foulke says he has come to learn that the hoops the agency needs to jump through are a necessary evil to ensure the standards that are being issued and revised are valid.
"This (rulemaking) process allows us to take in a lot of information from all different types of sources and try to size it down to figure out what makes the best standard," he asserts.
Foulke says he expects three to four rules to be issued before the end of his term in 2008 and promises that he will try his hardest to get them out as quickly as possible. OSHA already has added assigned protection factors (APFs) to its respiratory protection standard, and the agency on Sept. 12 published an Advanced Notice of Proposed Rulemaking seeking public comment on implementing the Globally Harmonized System of Classification and Labels (GHS). In addition, Foulke says he expects the cranes and derricks standard, which is already a step ahead with the completion of SBREFA panel member selection, to be out next year. In regard to a controversial rulemaking that would require employers to pay for personal protective equipment (PPE) - one that critics say has been languishing for 6 years - Foulke contends that the agency still is reviewing the rule and is optimistic that it is one that the agency can "move on forward." (Editor's Note: OSHA anticipates the Fall 2006 regulatory agenda, initially scheduled for release in early November, will be published this month in the Federal Register.)
But Foulke asserts that he will continue to stay on top of the regulatory agenda and move things along if he finds that there is a bottleneck.
"Part of my job is to make sure that things are moving," he states.
Lessons Learned in Emergency Preparedness
Foulke joined the agency knowing that a lot has changed since the tragic events of 9/11. The agency, according to Foulke, has had to take on more responsibilities, but he says he is confident that after the lessons learned from 9/11 and Katrina, OSHA has a solid system in place.
"The White House has been very driven and pushed various departments and agencies to make sure they looked at what happened, identified the problems and looked for solutions," he says. "We've done that."
For instance, OSHA has trained its inspectors in emergency response and supervisors from OSHA area offices along the Gulf Coast region have been trained to work with FEMA on how to coordinate training and response. In addition, the agency has prepared materials for the aftermath of another disaster.
The agency also recently issued new safety and health guidance that alerts employees and employers about the hazards of occupational exposure to avian influenza, which also includes recommendations on ways to avoid infection.
When asked why OSHA exempted enforcement during the hurricane disasters, Foulke explains that FEMA made it OSHA's mission to provide technical assistance only. But Foulke says the need for technical assistance was so much greater and it probably allowed the agency to get to more areas if it wouldn't have been operating under that mode.
The Look Ahead
What is certain is that Edwin Foulke has his plate full for the next 2 years. But he is taking on the challenge with passion and drive.
He starts out his day by checking his e-mails to see if any fatalities have happened overnight. He says he like to be kept abreast on everything that is going on so could be kept on top of the issues, be aware of what are the hazards most plaguing workers and see if he could come up with feasible and timely solutions.
"I like to be ahead of the curve on things as opposed to behind the curve so I can identify something that seems to be of an important nature dealing with workplace safety and health," he says.
Part of being "ahead of the curve" is making OSHA's mission clear to everyone - employers, employees, labor advocates and Congressional leaders. But as much as Foulke wants everyone to know that the agency is committed to reduce injuries, illnesses and fatalities and will be of service to all employers who wish to protect their company employees, he also wants to emphasize that "they will see OSHA up front and personal" if they choose not to. This is what he most wants to accomplish during his term as OSHA administrator.
"I want both employers and employees to see OSHA like their neighborhood policeman," Foulke declares. "We're here and we have a strong enforcement and we will use it."
"But," he adds, "we also are here to help employers because we can get so much more accomplished."
Sidebar: Critics Chime in on Foulke Tactics
OSHA Administrator Edwin Foulke Jr. asserts that compliance assistance is the most effective means of sending the message to employers of the need for comprehensive workplace safety and health programs. However, some OSHA critics aren't too sure that this is the answer.
Peg Seminario, safety and health director of the AFL-CIO, says the agency should focus its energy and budget in the areas of enforcement and standard setting, claiming this is where the most attention is needed. Seminario says that the agency has turned its back on standard setting and instead has resorted to issuing guidances, which she claims are not as effective because they aren't standards that can be enforced.
"A bunch of alliances with employers and expanding the Voluntary Protection Program should not be the foundation of a future OSHA program," she explains. "It's missing the forest in the trees as far as what is really needed to protect workers."
Seminario claims OSHA has failed to keep its promise to enforce sound ergonomic practices by citing employers under the General Duty clause. Congress reversed the ergonomics standard in 2001 and Seminario says that since then, the agency has "essentially shut down all operations on ergonomics."
Foulke, on the other hand, explains that the agency has been doing ergonomics outreach in a variety of ways, mainly through the issuance of guidelines and in enforcement. The agency, he claims, has sent out between 400 and 500 letters to employers warning them about the ergonomic hazards they need to address.
Aaron Trippler, director of government affairs at the American Industrial Hygiene Association (AIHA), is more sympathetic to Foulke, siding with him on the need for more compliance assistance. He noted that the agency should strike a balance between compliance assistance and stronger enforcement, as compliance assistance serves as a preventative measure, while enforcement is more reactionary.
"Compliance assistance and enforcement should be given equal priority," he says. "His [Foulke's] focus in the past has been preventing accidents and injuries so you don't have to worry about enforcement."
Another qualm Seminario says she has with Foulke is that she wishes that he would make time to meet with the unions to open up a dialogue about various topics of interest and start working together to improve safety and health of American's work force.
Trippler, though, says that Foulke is doing what he can and that there is no doubt that his passion for health and safety will leave a mark on the agency, despite the fact he has only 2 years to make that mark.
In the Nov. 8 midterm elections, the Democratic Party took the majority in the House and the Senate. Labor advocates such as Seminario are relieved and expressing hope that the new Congress will be more focused on the concerns of workers and will impose more oversight on OSHA.
This will make a big difference for occupational safety and health, says Seminario, because "no longer will agencies such as OSHA do whatever they want without being held accountable to the American people or workers."
Trippler agrees that Foulke will be facing more oversight in hearings, which he claims isn't necessarily a bad thing as the process will lay out the pros and cons of the issues taking place within the agency. He adds it will be interesting to see what lies ahead, with Foulke in charge of OSHA, and with a new Congress that will inevitably bring a tighter focus on occupational health and safety.
"I'm looking forward to seeing things brought to the forefront, brought before Congress, the media and employers and employees," Trippler says. "We can then talk about it and sometimes, you can come up with a better way of doing things."