CHAPTER 8: Occupational Safety and Health Regulation

Any physician who wishes to provide occupational health services must become familiar with the basic provisions of the two most sweeping federal laws that govern occupational safety and health and the conduct of occupational medicine: The Occupational Safety and Health Act (OSH Act) of 1970 and the Rehabilitation Act of 1973. The Rehabilitation Act is discussed in Chapter 21.

The Occupational Safety and Health Act

In passing the OSH Act in 1970, the US Congress declared "its purpose and policy .... to assure so far as possible every working man and woman in the Nation safe and healthful working conditions ...." The Act is itself a landmark in the history of American labor and public health legislation, for it was the first major piece of legislation that governed occupational safety and health in the US across the great breadth of industries. Despite its lofty intentions, however, from the outset the Act was not intended to protect the millions of employees of public agencies (federal, state, county and municipal) and of private establishment with less than 10 employees. Since physicians who provide occupational health services may seek markets among these employment groups, they must realize that the OSH Act in letter does not strictly apply to these groups. However, the public policy and purpose of the Act should apply to all workers, and the physician can be the mechanism by which the basic provisions of the OSH Act reach their greater audience.

The OSH Act is long and complicated, but certain sections of it are directly applicable to the practice of occupational medicine.

Each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." This is known as the "General Duty Clause". The Occupational Safety and Health Administration (OSHA), the agency primarily responsible for enforcing the OSH Act, sets standards, rules and regulations by which covered employers are expected to conduct business. However, not all potential hazardous exposures can be conceived of; the "general duty clause" covers all possible hazards, and puts responsibility for eliminating or minimizing hazardous conditions on the shoulders of the employers. Physicians, with their knowledge of human biology, can assist employers to meet the requirement of the "general duty clause".

Section 6 of the Act gives OSHA the authority to adopt standards, rules and regulations governing workplace health. For the most part, the standards for exposure to chemical and physical agents in the workplace were set within the first 22 months of the adoption of the Act. In these hectic first months, OSHA adopted guidelines and standards that were available at that time, such as those in the Walsh-Healy Act (a predecessor federal law covering government contractors) or in recommendations by such organizations as the American National Standards Institute, whose standards are arrived at by consensus. Once these standards were adopted by OSHA by 1972, they could be changed only by a lengthy rule-making process. As a result, many OSHA standards have not changed since the early 1970's although knowledge about many hazards has grown substantially.

To interpret them correctly, physicians must understand the nature of OSHA exposure standards. The most common standard is called the Permissible Exposure Limit (PEL). The PEL is the concentration level of an agent above which an employer may not expose his employees. Thus, it is a legal term, which is supposed to be grounded in basic toxicological understanding of exposure and human response to exposure. Usually the PEL is stated in terms of an 8-hour time-weighted average (TWA) of exposure. For any given substance, there may also be a Short-term Exposure Limit (STEL), another level above which no worker must be exposed for greater than a defined, short period of time, such as 15 minutes. Finally, there may be a Ceiling (Ceil) Limit, above which a worker must never be exposed, even instantaneously.

Because of the legal nature of the PELs, STELs and Ceiling limits under the OSH Act, one is often led to believe that all exposures that are in compliance with the standards are "safe" and all that are out of compliance are "unsafe". This is definitely not the case. To understand this physicians should be aware of and should help management become aware of, an analogous term, the existence of a set of authoritative sets of standards that are often more useful the Threshold Limit Values (TLVs) of the American Conference of Governmental Industrial Hygienists (ACGIH). The ACGIH is a professional society, not an official agency of the federal government, which since 1938 has reviewed toxicologic data and developed guidelines for exposure based on those data. It, too, has three types of exposure guidelines. The TLV-TWA is the time-weighted average concentration for a normal 8-hour workday and 40-hour workweek, to which nearly all workers may be repeatedly exposed, day after day, without adverse effect (emphasis added). TLV-STEL is the concentration to which workers can be exposed continuously for a short period of time without suffering from 1) irritation; 2) chronic or irreversible tissue damage, or 3) narcosis of sufficient degrees to increase the likelihood of accidental injury, impaired self-rescue or to materially reduce work efficiency. The TLV-C (Ceiling) is the concentration that should not be exceeded during any part of the working exposure.

The parallels between the OSHA permissible exposure limits and the ACGIH Threshold Limit Values are clear. Although all employers covered by the OSH Act must comply with OSHA exposure limits, from a purely health-based approach the ACGIH guidelines may be more useful, in that they are reviewed every two years and need not be subject to a lengthy rule-making process.

A third set of exposure guidelines may also be helpful to the physician who practices occupational medicine. The National Institute for Occupational Safety and Health (NIOSH) was also established by the OSH Act. Administratively it is part of the US Public Health Service, and it has research and educational, but not enforcement, functions. One of NIOSH's responsibilities is to review chemical, toxicologic, and control-process data to arrive at "criteria for a recommended standard" of exposure and control. These criteria have been published as "criteria documents" by NIOSH. Unlike the ACGIH, whose guidelines are published in a small booklet, and whose justifications for guidelines are summarized in only one or two pages for each chemical or physical agent, NIOSH "criteria documents" are often hundreds of pages in length. They take years to produce and are reviewed extensively. Despite their not being official standards, they are produced by a federal agency and are designed to be used by OSHA in implementing new standards. With recent cutbacks in budgets, NIOSH has produced fewer criteria documents, and some of them are now over a decade old. However, the thorough documentation behind each recommended standard makes them very useful still.

As a result, the physician has a choice of where to look for data to assist management in maintaining a workplace safe from harmful exposure levels. Table 1 shows a few chemicals, and the differences between OSHA standards and ACGIH and NIOSH recommendations.

Within this short table there are three important points: 1) OSHA, ACGIH, and NIOSH may not agree with one another; 2) the basis for a recommended exposure level may differ (NIOSH considers epichlorhydrin to be a carcinogen; ACGIH and OSHA do not); 3) OSHA standards may not always be the least restrictive (see inorganic lead), despite their age and the cumbersome legal procedure by which they are amended.

Medical Surveillance

Most standards that have been promulgated by OSHA do not mandate specific medical surveillance practices, but some of the more complete standards do. Examples are the standards for lead, arsenic, cotton dust and asbestos. It would not be fruitful to go into details of the several surveillance requirements. That there are detailed requirements points to the necessity that physicians who provide occupational health services must become familiar with exposures to which their worker-patients are subjected, to make sure that one or more of the medical surveillance requirements is or is not applicable. The medical surveillance requirements may include: 1) mandatory preplacement testing; 2) mandatory periodic testing at varying, prescribed intervals; 3) post-employment testing; 4) specific tests and procedures; 5) specific methods of performing and interpreting tests and procedures; 6) long-term records-keeping requirements; 7) mandated access to records by governmental authorities. Any one of these requirements can have a profound effect on a physician's practice. A good example of this is the rule governing the exposure to asbestos (Federal Register, June 20, 1986, pages 22737 and 22738).

     
     
    
                                 Table 8.1.
     
           OSHA Permissible Exposure Limits and ACGIH and NIOSH
                   Recommended Exposure Levels Compared
     
     (8-hour Time-weighted averages only) for Three Selected Chemicals
                   
     
                
                    OSHA               ACGIH         NIOSH

                    PEL                TLV           Recommended Standard

 Acrylonitrile      2 ppm (parts       2 ppm         1 ppm
                    per million

 Epichlorhydrin     5 ppm              2 ppm         carcinogen-lowest
                                                     feasible limit

 Inorganic Lead     0.05 mg/m3         0.15 mg/m3    0.1 mg/m3
                    (milligrams per
                     cubic meter)
     
     

Research and Related Activities

NIOSH is the primary research arm of the federal occupational safety and health effort. To conduct its research, NIOSH often must rely on access to both medical records and human subjects in private industry. In general, NIOSH has no direct role in enforcement, but the one activity for which it does have enforcement authority is the conduct of research. NIOSH can require that it be given access to confidential medical and exposure records, for example. By NIOSH's regulations, which have been held up in court, within proper guidelines it is not considered a breach of physician-patient confidentiality for NIOSH (and its contractors who conduct approved research) to gain access to medical records that are held for employers and employees by third parties, such as contracting physicians and health care institutions. When approached by NIOSH to inspect records, physicians should understand that they must comply. However, they should also make sure that those with access follow NIOSH's own rules concerning confidentiality and records management (42 Code of Federal Regulations Parts 85 and 85a). In general, when NIOSH requires access to private records, it is for purpose consistent with medical ethics: to study the effects of exposure on human beings, in order to recommend appropriate public and private responses to the knowledge that is gained. To this end, these activities are not at cross purposes to the basic ethics of medical practice, despite the initial concern a physician might have about breach of confidentiality and the physician-patient relationship.

A Turbulent History

The passage of the Occupational Safety and Health Act of 1970 was the culmination of a long struggle on the part of organized labor to improve working conditions in the United States. For over 100 years prior to that, individual states had the responsibility for worker health and safety. The standards accepted as sound work practices were written by industry association and professional groups and were intended to be guidelines for management. The OSH Act elevated the recommended guidelines to the status of federal law and created an enforcement bureaucracy to ensure compliance, the Occupational Health and Safety Administration.

During the 1960's, there was growing concern among labor groups about dangerous working conditions and among community activists about environmental pollution. In 1968, the Deputy Secretary of Labor announced that health and safety violations had been uncovered in 95% of the industrial establishments inspected by the department in 1967. At about the same time, other key issues on the agenda of organized labor had been satisfied through collective bargaining with major employers, notably wage scales, the 40-hour work week, and benefits. The OSH Act represents a high water-mark in the power of organized labor which has since seen its level of support erode and its membership decline. On January 23, 1968, President Lyndon Johnson asked Congress for an Occupational Safety and Health Act as part of an address on Manpower Development and Training and in response H.R. 14816 was introduced. During the final years of the Johnson Administration, the Democratic party had a large majority in both the Senate and the House and Congress feared the political influence of organized labor's Congress on Political Education (COPE) of the American Federation of Labor - Congress of Industrial Organization (AFL-CIO). Even so, opposition to the original bill was stiff. H.R. 14816 was modified in committee, reintroduced and later defeated.

In 1968, Johnson did not run again for the Presidency. The Democratic vote was split and then-Vice-President Hubert Humphrey lost by a fraction of a percent to Richard Nixon. Due largely to last minute efforts by the AFL-CIO to support Democratic candidates for Congress, Nixon faced a Democratic majority in both houses. George Meany was President of the AFL-CIO and exercised considerable influence on votes in Congress. Nixon and his Secretary of Labor, Charles Schultz, adopted a pragmatic, concillatory approach in dealing with organized labor. It may appear surprising that a conservative Republican President would tacitly cooperate with the strongest source of support for the Democratic Party but at the time the Republican administration could not afford a major battle in Congress along partisan lines. They also hoped to attract large numbers of disaffected white ethnic voters into the Republican party. Organized labor believed that it was dealing from a position of strength and saw its influence on the Republican Party as one step toward broadening support for its political goals and toward ending its dependence on a single political vehicle, the Democratic Party, in achieving its goals.

In this atmosphere of cautious collaboration, another Occupational Health and Safety Act was introduced, the "Daniels Bill" (H.R. 16785). Criticism of the Daniels bill was bitter and vocally expressed in terms of "more bureaucracy", "red tape", "federal controls", and "more tax money", "killing the goose that lays the golden egg", "inefficiency", "government intervention", and "too much regulation". The alternative put forward by industry was a philosophy of responsible, voluntary self-regulation supervised by state and local government. This was essentially the status quo, however, and it was clearly not perceived as working by those concerned about the issue.

The Daniels Bill was eventually modified to reduce the direct power of the Secretary of Labor on occupational health and safety standards and enforcement and was reintroduced as H.R. 19200 by Congressman William Steiger. It passed, and was signed into law in a House and Senate compromise version by Richard Nixon on December 29, 1969. The Occupational Safety and Health Act of 1970 had finally become the law of the land.

Although it was the short-term interest of the Nixon Administration to be seen to support OSHA, its application and enforcement could be and was subjected to political expediency. Nixon and the Republicans were set on recruiting blue collar support in order to establish a permanent conservative constituency. The Nixon Administration could safety take a strong stand on the need for health and safety legislation and survive politically in spite of opposition from traditional sources of support favoring a laissez-faire approach because of the high number of work related deaths and injuries. Even so, the ideology of the Nixon Administration remained fundamentally unsympathetic and the Republican Party ultimately could not ignore its support from industry and conservative quarters. There was also a tendency to exploit every available advantage of the incumbent, such as that that led to the Watergate incident. According to George Meany and documents that came to public attention during the Watergate investigation, President Nixon attempted to use selective enforcement of the OSH Act, or the promise of weak enforcement, as an incentive for industries to contribute to his re-election campaign in 1972. In other words, commitment, compliance and enforcement ended after initial support for the legislation and the Administration that created OSHA then used it as a political tool.

The first major legislative assault on the OSH Act occurred in 1980 with the so-called "OSHA Improvements Act" introduced by then - Senator Richard Schweiker (Republican, Pennsylvania) with the cosponsorship of numerous Senators. This bill would have exempted 90% of American workplaces from federal OSHA inspection for safety violations unless a certain quota of reported industrial accidents were exceeded in a given year. By removing OSHA's authority to inspect before prior warning, the bill would have allowed intervention only after a dangerous situation had already caused injury. Since OSHA has now and had then only the resources to inspect a tiny fraction of workplaces under its jurisdiction, its role is like that of the highway patrolman who depends on the motorist's fear of getting caught to prevent speeding. Removing even the possibility of unannounced inspection could have removed all leverage the agency possessed, especially since it would have depended on an accident reporting system controlled by the companies being regulated. The legislative initiative did not succeed.

Soon after, a major reversal occurred when the Supreme Court, reviewing on appeal a challenge to the standard set for exposure to benzene, ruled that OSHA had not made a strong enough scientific case to demonstrate that the benefits of regulation would be worth the proposed costs. Although very visible at the time and widely publicized, the ruling provided little in the way of a legal precedent because it was decided by a bare majority of the court and the opinions offered even by the justices in the majority were not uniform in their interpretation.

With the coming of the Reagan Administration in January 1981, occupational health and safety regulations and enforcement underwent some drastic changes. Within a short time after his confirmation as Deputy Secretary of Labor and head of OSHA, Thorne Auchter took or approved actions that, rescinded the proposed standard for workers exposed to lead, banned the distribution of some films, slides, and booklets dealing with worker rights and health dangers, exempted nearly three quarters of U.S. manufacturing concerns from routine safety inspections, and proposed to restrict surprise workplace inspections in response to employee complaints.

In addition, the Reagan Administration tried to amend the OSH Act to permit the use of cost/benefit analysis in setting standards. Initially, this was attempted through a directive from the Office of Management and the Budget. The issue was also brought to the Supreme Court in the case of setting cotton dust standards to prevent "brown lung" disease. The Supreme Court voted 5-3 to uphold current standards and rejected the argument that the government should make sure costs to be imposed on industry are in line with the health benefits to be gained.

OSHA At the State and Local Level

The enabling legislation for federal OSHA assumed that most states would eventually assume partial responsibility for occupational health and safety under broad federal supervision. Most were slow to do so, however. California was one of only about 25 states ever to have their own occupational safety and health administration. In 1987, the California state OSHA (CalOSHA) was rescinded by the Governor from the budget and dissolved even though it only represented an $8 million expenditure per year. Until that time, CalOSHA was generally considered the leading state OSHA program. California is now covered by an office of federal OSHA. It remains to be seen how this change will affect enforcement of occupational health and safety standards in the state.

State regulations as permitted under the OSH Act are to be at least as strict as the federal law and may be even stricter in setting standards and enforcement policies. Much depends on financial resources available, however. Fifty percent of CalOSHA's budget came from the federal government and fifty percent came from the State Department of Industrial Relations. California was considered in the forefront of worker protection, largely due to the progressive administration in the state department. As budget cuts on the federal level reduced the federal contribution, maintenance of the state agency had become increasingly more difficult even before the Governor's decision.

All employers with at least one employee are required to comply with state OSHA standards with a very few exceptions. The exceptions are: federal employees, who are covered by federal OSHA director or indirectly by interagency agreement; miners, who are covered under the Mine Safety Act; and structural pest control workers, who do not seem to be protected under any law. Many people are under the mistaken impression that small businesses are not covered by OSHA. If an employer never has more than ten people on the payroll during any twenty-four hour period, that employer is exempt from the record keeping requirements which the OSH Act mandates but must still comply with all applicable standards.

Standards for occupational safety and health in California are set forth in the California Administrative Code. They are based on recommendations from the National Institute of Occupational Safety and Health (NIOSH), a spearate creation of the OSH Act. There are hundreds of standards covering machine guarding, materials handling and standards, toxic chemicals, noise, radiation, exits, walking and working surfaces, sanitation, fire prevention, welding, staging and shoring, scaffolding, operation and design of machinery, and other hazards. If no specific standard is set for a workplace, there is a "General Duty Clause" in the OSH Act which states "Employers are required to maintain a workplace free from recognized hazards". Temporary emergency standards can be set until permenent ones are established to protect workers when new hazards are introduced in the workplace. A temporary or permanent variance can be granted to a company, exempting them from a particular standard. The request for variance can be submitted at any time, and if it comes after an inspection, it will not affect the citation. In addition, employers can appeal OSHA actions on violations, fines, prescribed clean up and deadlines. Employees, on the other hand, can only appeal deadlines.

There are three categories of violations: imminent danger, serious, and other than serious. Citations for imminent danger are very rare; when they are made, the shop is closed down immediately until the danger is corrected. Serious violations are those which have substantial probability of causing death or physical harm. Serious violations were 12.5% of all violations cited by CalOSHA in 1980.

Fines are determined by how dangerous the violation is. If management shows "good faith" in trying to keep things safe, there is a 30% reduction in the penalty. In addition, there is a 10% reduction for small businesses. There is no limit on the dollar amount of a fine. In 1987, federal OSHA imposed a fine of $1.6 million on Chrysler Corporation's Newark, Delaware, plant for multiple violations. This is very unusual, however, and was widely interpreted as an effort by OSHA to show visible strength. In San Diego in 1980, the average fine fell in the range of $30-$60 for minor violations and $700-$1,000 for more serious ones. The employer could go to the OSHA Appeals Board to seek relief from a penalty. The Appeals Board was appointed by the Governor in California.

Many state OSHAs have both consultation and compliance branches. The major difference in the functions of the two branches is that the compliance office is in many respects the employee's advocate, and the consultation service is primarily to be the advocate or resource of the employer. The main purpose of the consultation service is to assist management to correct a health or safety problem, by providing information and education to employers and employee organizations. In practice, OSHA consultation services tend to be limited to simple forms of assistance such as spot checks, single measurements of hazards, and advice. The technical capabilities provided by OSHA consultation services are usually very limited. Even so, they provide a point of departure for employers to begin to resolve their problems. Unfortunately, many and perhaps most smaller employers shy away from using OSHA-sponsored consultation services out of fear that their deficiencies will come to the attention of the enforcement branch. The fear is largely groundless but has substantially inhibited use of this service. Larger employers usually have access to their non-technical experts anyway or can afford expensive consultation services from private firms.

Standards are enforced through inspections. In general, compliance officers are much better trained in safety hazards than in health problems. OSHA compliance officers visit workplaces for basically three reasons: routine inspections made at workplaces where there is a high risk of accidents, such as construction sites, responses to complaints from workers, and, investigations of accidents where there is a fatality or 5 or more people serious injured. In 1980, the breakdown of inspections made by CalOSHA was: routine 4%, responses to worker complaints 34%, and accidents 25%. Inspections have three major phases. The first is the "opening conference" when the inspector describes the inspection plan to management and to representatives of the employees. The next phase is the "walk around", an inspection tour. Management and employee representatives are allowed to accompany the OSHA inspector on this tour. Employers are not now required to pay employees for the time spent participating in an OSHA inspection, and this has been a source of considerable controversy. The final phase is the "closing conference". Results of the inspection are discussed with management, as well as ways to correct the hazards, deadlines, and possible fines. The employee representative can request attendance at this meeting but management has the privilege of vetoing employee representation.

Under Section 11(c) of the OSH Act, an employer is prohibited from firing or discriminating against any employee "because of the exercise by such employee on behalf of himself or others of any right afforded by this act". Specifically included in this section are the rights to file a safety and health complaint, to institute a proceeding under the OSH Act, and to testify at any hearings. Many workers fear that their employer will nonetheless find grounds to discipline or even to fire them on other grounds or on pretexts if they exercise their rights, however despite Section 11(c). Unfortunately, this happens often enough to confirm such fears. Once an employee is singled out as a "troublemaker" by management it is easy enough to accumulate real or imagined complaints that may lead to termination ostensibly on other grounds.

Once a job hazard is encountered, it should be brought to the attention of the employer. If no action is taken, an employee may contact the OSHA area office and, where the employee will be able to file a complaint in writing. All complaints are evaluated and priority is assigned by the perceived severity of the hazard. On the basis of this evaluation, OSHA staff decide whether to conduct an inspection. OSHA policy has been to inspect all potential serious violations within three working days. Formal requests for inspection of hazards not considered serious should be dealt with, either by dismissal or scheduling of an inspection, within twenty working days. If OSHA decides not to conduct an inspection, the union representative or the employee signing the complaint must be informed, in writing, of the reason the inspection was denied. An informal review may then be requested.

Exceptions are made for situations of "imminent danger", as defined in Section 13(a) of the OSH Act: a condition in which there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately, or before the danger can be eliminated through normal enforcement procedures. An employer found not to be in compliance with OSHA standards may be issued a citation and given an abatement date, by which the hazard must be corrected. A fine may also be assessed. Various factors are weighed before citations and fines are issued, such as size of employer's business, the seriousness of the violation, the apparent good faith of the employer, and any record of prior violations. After all these factors are taken into consideration, penalties are frequently minimal. Since it often costs considerably more to correct a hazard than to pay OSHA fines, abatement dates may be missed or ignored by employers. An employer may be assessed a civil penalty of not more than $1,000 for each day during which a violation continues past an abatement date. Extensions beyond the abatement date are common. During this time, employees may continue to be exposed to the hazard.

Unsafe Work Practices and the Right of Refusal

Occasions arise when an employee is confronted with the choice of not performing a task assigned by a supervisor, and either facing possible suspension or discharge, or accepting the possibility of serious injury or death. Normal OSHA enforcement procedures may be too slow to help in this event. To prevent workers from having to face a choice between their job or possibly their life, the Secretary of Labor promulgated a regulation in 1977 (29 C.F.R. 1977.12) providing that, in very limited circumstances and under specific conditions, an employee may refuse to perform unsafe work. This regulation extended the OSH Act's prohibition against discrimination under Section 11(c) to include the issue of refusal to perform hazardous work. Before a worker with no reasonable alternative refuses in "good faith" to perform dangerous work, three conditions must be met: 1) The hazard must be of such a nature that any reasonable person, under the same circumstances, would conclude that there is a real danger of death or serious injury. 2) There must be insufficient time to eliminate the danger through resorting to regulatory statutory enforcement channels. 3) The employee must initially have sought correction of the dangerous situation by the employer. If all of the conditions have been satisfied but the employer nonetheless takes disciplinary action against the employee, the employee may file a discrimination complaint under Section 11(c).

Shortly after regulation 1977.12 was announced, it was challenged in the courts. The regulation gave the individual worker's opinion weight in the decision to comply with a direct work order. Management authority was obviously restricted if an employee was legally afforded the right to refuse unusually hazardous work. Industry feared abuse of the right and its frequent use in intrinsically hazardous jobs as a tactic for harrassing supervisors. Regulation 1977.12 was overturned in a U.S. District Court and the Fifth Circuit Court of Appeals ruled on appeal that it was beyond the Secretary of Labor's authority to have issued Regulation 1977.12. However, another case set the opposite precedent when the Sixth Circuit Court of Appeals ruled in 1979 that Regulation 1977.12 was indeed valid. In the courts view, "A worker should not have to choose between his job and his life without reasonable safeguard provided by....". Since the new ruling by the Sixth Circuit Court of Appeals conflicted with two other Federal Court rulings, the Supreme Court agreed to hear the case on appeal. In a unanimous decision, the high court rejected the Whirlpool Company's contention that the Secretary's regulation gives workers a right which Congress intentionally declined to grant in framing the OSH Act. During deliberations on the OSH Act, Congress had considered but rejected the notion of "strike with pay" as a right of employees when confronted with a dangerous work situation. The employee could not walk off a job and still expect pay, a concept that was compared to a strike with pay. The Supreme Court found that the Secretary, in exercising broad rule-making authority under the Act, had promulgated a regulation consistent with the OSH Act and with Congressional intent. The justices went on to conclude that the rule "clearly conforms to the fundamental objective of the Act - to prevent occupational deaths and serious injury".

The decision has broad implications. The plaintiff did not spend thousands of dollars in legal fees in order to avoid paying fines. At stake was control of the workplace. In the absence of labor unions, many workers would have pm;u twp alternatives when faced with a serious hazard: acquisescence and danger or refusal and discipline. In upholding the validity of Regulation 1977.12 and placing limitations on the authority of management to direct the workforce, the Supreme Court gave weight to the fundamental purpose of the OSH Act. Although a small part of the OSH Act's history overall, this issue is informative in understanding some of the deeper issues involved.

Changes in OSHA

In order to be seen as responsive to employee's concerns, OSHA has introduced the so-called "regulatory relief" package, a series of policy changes to reduce the perceived burden of federal regulation of industry. Rather than concentrating on eliminating hazards from the workplace, the policy emphasizes increasing use of protective gear such as respirators and earplugs. In the past OSHA has allowed only temporary reliance on respirators and similar personal protective devices. Occupational health experts argue that protective gear can almost never be as effective as engineering controls and they believe health and safety regulations will be almost impossible to enforce.

How one views OSHA depends on who one sees as the victim in the situation. Worker advocates see workers as the victim, with companies inflicting suffering on them, through unhealthful working conditions and time pressures. This does not necessarily mean that workers are solidly in support of OSHA as the advocate of their best interest, however. Workers do not always see OSHA or other issues from a "worker" point of view. This may partially be due to the fact that most American workers consider it possible or even, at least for part of their lives, likely that they too will one day be successful in business. They see themselves as a potential member of the group of employers and may begin to align their attitudes with those of the employer group. It also may reflect the more conservative politics of the rank and file union member compared with past attitudes or the lack of interest in politics of any form among a substantial segment of the working population.

Employers and managers, on the other hand, show more consistency in their views against "government regulations". Their advocates typically see the employer as the victim, with OSHA, the workers, unions and government in general, inflicting excessive and unnecessary regulation which causes delays, frustration, and increased costs. Intrusion into the production process is not easily accepted by the business manager or owner who expects to control that process.

The 1970 OSH Act was passed to ensure employees legal protection against occupational injury and disease. "To assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources" is the OSH Act's declared purpose. However in this piece of otherwise enlightened legislation is there an explicitly stated right for a worker to refuse an assignment which may result in serious injury or death and not be punished for such refusal. That had to come later by regulating almost as an afterthought. OSHA has been widely seen as too weak on enforcement. What OSHA has accomplished, however, is the ever greater and more sophisticated appreciation of the problems of workplace health and safety. Nothing has been as important as the message which has come from the existence of OSHA: change the workplace, not the worker.

Until the passage of the OSH Act, personnel or industrial relations managers rarely had more than the most rudimentary safety and health training. Few industrial relations and personnel courses or texts contained more than a mention of theories of accident causation. Hazard control was delegated to maintenance or engineering departments. Top management was little involved in hazard controls. Supervisors in these departments were directly responsible to line management whose major concern was production and not the improvement of working conditions. The safety director rarely had much influence or support from top management unless a major accident occurred. The "unsafe act" theory became a convenient mechanism for assigning blame to the worker himself. Many companies regarded accidents from a cost standpoint, and retitled their safety and health director as the "loss control" supervisor. The old approach considered safety issues after an accident or illness has occurred.

Today the situation is far from ideal but it is much improved. A vigorous effort has been made to clean up the workplace. A keystone of this effort has been the direct training of workers to recognize hazards, to participate in their control, the means to control them, to monitor hazards in the workplace, and to know and to exercise rights under the law. As this is written, OSHA is awaiting a mandate from Congress to expand the rights of workers to be informed on hazards they encounter in the workplace. This message would ensure a more knowledgeable and aware worker and should channel legitimate concern into education and understanding.

Further Reading

Auchter T. How to get out of an OSHA inspection. Christian Science Monitor, 14 January 1983, p. 5.

Bock G. Blood, sweat, and fears. Time, 28 September 1984, pp. 50-51.

Boden LI, Levinstein C. Regulating safety: OSHA's "new look". American Journal of Forensic Medicine and Pathology 1982; 3:339-342.

Brandt-Rauf SI, Brandt-Rauf PW. Occupational health ethics: OSHA and the courts. Journal of Health Politics, Policy, and Law 1980; 5:523-534.

Cal OSHA cuts: Political issue. California Political Week, June 1987, p. 3.

Crawford J. The dismantling of OSHA. The Nation, 12 September 1981, pp. 205-207.

Glaberson W. Is OSHA falling down on the job? New York Times, 2 August 1987, pp. 3-1, 3-6.

Impact of job safety law on employer and workers. U.S. News and World Report, 11 January 1971, p. 88.

Industrial safety: the toll of neglect. Time, 7 February 1969, p. 76.

Job safety bill breaks new ground. U.S. News and World Report, 28 December 1970, p. 57.

Labor Day '69: some plain talk from George Medvy. U.S. New and World Report, 8 September 1969, p. 77.

Mac Sheoin T. The dismantling of U.S. health and safety regulations under the first Reagan Administration: a bibliography. International Journal of Health Services 1985; 15:585-608.

McCaffrey DP. OSHA and the Politics of Health Regulation. New York, Plenum, 1982.

Mendeloff J. The role of OSHA violations in serious workplace accidents. Journal of Occupational Medicine 1984; 26:353-360.

Miller ML, Kennish R. Occupational Health and Safety Administration, in LaDou J, ed. Occupational Health Law: A Guide for Industry. New York, Marcel Dekker, 1981.

Nader R. The violence of omission. The Nation, 10 February 1969, pp. 205-207.

Nixon's call for job-safety rules. U.S. News and World Report, 18 August 1969, p. 63.

OSHA, industry's new friend. New York Times, 5 September 1983, p. 1-19.

Restraining OSHA: it's just a matter of time. Business Week, 5 May 1980, p. 110.

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