OSHA Reform

As we have seen throughout the COVID crisis, worker safety is a huge problem in this nation. One big reason for that is that corporations have gone full regulatory capture on OSHA. We need serious OSHA reform. Moshe Marvit lays out what needs to happen.

There is likely no reasonable path forward for OSHA to add enough new compliance officers to adequately inspect every workplace under its jurisdiction, and certainly not in time to deal with the current pandemic. Doing so, would require making OSHA one of the largest federal agencies, and significantly changing almost every aspect of the agency. Rather, there should be a renewed focus on worker participation in their own health and safety. Such a provision was included in the OSH Act, but it was written at a time when between 25 percent to 30 percent of private sector workers were represented by unions;¹ currently, only 6.2 percent of private sector workers belong to a union. When OSHA was born, unions did a great deal of the work in ensuring a safe workplace; in their absence, a vacuum has been created.

This policy reform idea is neither novel, nor radical. It was first introduced in 1992 in a law review article by labor law scholar, Clyde Summers, and it deserves renewed attention. In Professor Summers’ article, “Effective Remedies for Employment Rights: Preliminary Guidelines and Proposals,” he proposed a real enhancement of the “representative of employees” provision of the OSH Act in light of the fact that the provision is largely meaningless in a nonunion workplace. In order to give real effect to the law, each workplace should have workers elect nonexclusive health and safety representatives or committees. These health and safety committees would have not just the limited role included in the OSH Act of being able to trigger an inspection and walking around with inspectors, but rather as “the workplace implementors of the statutory provisions and policies, representing the interests of employees, individually, and as a group, in having a safe and healthy workplace.”

In practice, what this would mean is that these employee representatives or safety committees would have the right to regularly inspect workplace activities, conditions, protocols, accident and disease reports, and all other aspects of the workplace that touch upon health and safety. These representatives could consist of workers or union representatives, health and safety advocates, retired workers, members of community groups, or whomever the workers felt would do the best job in ensuring a safe work environment. If the safety committee were to find anything that was problematic, it would have both the responsibility and the right to discuss the issues with management. And if management either refused to engage or respond in a satisfactory manner, the safety committee would be able to demand an OSHA inspection to determine if the issue was in violation of employees’ health and safety rights. The workplace safety committee would then be a party in the case, just like the employer, having the right to present evidence, file arguments, and seek judicial review. Furthermore, if a worker served on a safety committee, it would need to be acknowledged that such worker would effectively have a target on her back, in terms of potential retaliation by the employer. Therefore, employers should be required to receive preclearance before taking any adverse employment action against such an employee, in order to ensure that it is not in retaliation for participation in a statutory safety committee.

This approach would have numerous benefits. It would be much more efficient than the current federal health and safety model. Workers know their specific health and safety needs and problems better than anyone, and have the greatest stake in the health and safety of the workplace. Furthermore, the protocols and procedures of a safe workplace should always be a collaborative effort, in which workers have a voice and power in the process. Furthermore, the OSHA model, as currently conceived, puts workers in an untenable position of having the theoretical right to a safe workplace, but with such a weak enforcement and remedial scheme as to make the right ephemeral in all but the most extreme cases.

Additionally, this reform approach would restore some of the voice that workers have lost in the workplace as a result of the extreme decline in union density in the United States. Labor scholar Nelson Lichtenstein, in proposing that states pass laws allowing for such safety committees, has aptly stated that “Many of these councils can be prefigurative institutions, proto-unions that can give hundreds of thousands of workers now laboring in authoritarian workplaces their first taste of voice and solidarity.” Though Professor Lichtenstein’s argument for safety committees is compelling, the state-based approach would present significant federal preemption problems that would prohibit states from passing such rules without approval from OSHA. Such approval would either likely not be granted or even revoked under certain presidential administrations, making it a problematic permanent solution. Furthermore, even if OSHA did grant states a variance to allow statutory safety committees, such state laws would further have to overcome federal labor law preemption, which is even broader than federal OSHA preemption. However, these issues would not exist if the OSH Act were reformed to require such safety committees.