The Occupational Safety and Health Administration’s Impact on Employers: What Worked and Where to Go From Here

When the OSH Act of 1970 was passed, Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe and healthful working conditions for employees. OSHA did so by setting and enforcing standards and by providing training, outreach, and education.

Early standard setting was aggressive and ambitious, with the incorporation of industry consensus standards and the promulgation of new standards. OSHA’s standard setting and enforcement sparked increased membership in safety and health professional organizations, which in turn led to strong demand for obtaining safety or health certification. Additionally, this growth drove the development of a wide variety of safety and health products, in effect creating a new market. Vendors used OSHA standards and enforcement to motivate sales.

In the early days of OSHA, as now, employer compliance with OSHA standards was daunting, particularly for startups trying to get established. Unfortunately, OSHA focused on enforcement and failed to offer much in the way of compliance assistance. Employers typically complied with OSHA regulations out of fear of an OSHA citation and penalty. The survival of any company is based on profitability, and most employers did not appreciate or understand the value an effective safety and health program adds to their business. They believed that complying with regulations was costly and unnecessary; many employers could not imagine a catastrophic incident ever occurring in “my” workplace.

Through the 1980s, standards rolled out of OSHA at a fast clip. Standards addressing recordkeeping, personal protective equipment, fall protection, hearing conservation, respiratory protection, hazard communication, confined spaces, lockout-tagout, chemical exposures, and process safety management received national media attention and raised industry awareness. These large and highly visible standards kept businesses scrambling to comply well into the 1990s. Companies had to invest to upgrade their operations and control hazards to make the workplace safer.

Employers complained about the cost and feasibility of compliance with OSHA. However, in most cases, compliance with the rules improved their productivity. For example, the standard for vinyl chloride (a liver carcinogen) was widely opposed when issued in the 1970s. Employers argued that to comply, they would have to upgrade many of their operations and the cost would drive them out of business. In reality, these employers complied quickly and increased both their productivity and profitability. It should be noted that OSHA enforcement activities also help to “level the playing field.” For years, employers have complained that employers (particularly in the construction industry) that do not fully comply with OSHA standards receive an unfair competitive advantage. Some frustrated employers have even taken the drastic step of reporting their competitors’ unsafe conditions to OSHA.

EVOLVING EMPLOYER ATTITUDES

Employer recognition of the value of occupational safety and health has come a long way since 1970. OSHA deserves some credit for this transition. Currently, when OSHA announces the development of a new rule, it’s not uncommon for employers to begin major compliance efforts long before the standard is finalized. Consequently, when the new standard actually goes into effect, many employers are already in compliance.

However, in the past 20 years, OSHA’s position in workplace health and safety has diminished. When the OSHA assistant secretary spoke at the annual National Safety Congress in the 1970s through the 1990s, the hall was standing room only. Employers—uncertain about compliance requirements, in the dark about OSHA’s next moves regarding new standards, and worried about enforcement policies—wanted to hear directly from the head of OSHA. In 2019, the head of OSHA did not even attend the congress, and current OSHA activities were relegated to small technical sessions.

OSHA’s diminishing influence is owing in part to its standard-setting process. Most would agree that this process is broken. There are so many steps involved in setting a standard that it takes four to six years to get from proposal to a final standard. For example, most current permissible exposure limits are based on data from the 1960s or earlier. In the case of the recently issued walking and working surfaces standard, it took OSHA more than 20 years to promulgate and issue a final standard. Fixing the standard-setting process would require amending the OSH Act, which is not doable in the near future.

GETTING BACK ON TRACK

Looking to the future, there are several actions OSHA can take to revitalize its efforts and reassert its relevancy.

OSHA’s top focus going forward should be to issue a safety and health management system or program standard. During its first 50 years, the agency never had the political or public support to set programmatic requirements for a basic occupational safety and health program standard that would include management leadership, employee involvement, training, hazard recognition and assessment, and hazard prevention and control and mitigation. Some occupational safety and health authorities have speculated that this should have been the first standard OSHA ever issued. Such a standard would have a dramatic impact on overall health and safety.

A safety and health program standard would mirror the importance and beneficial effect of OSHA’s hazard communication standard. In my opinion, the hazard communication rule is one of the agency’s most significant standards. For years, employers understood the importance of “right to know” but were challenged when trying to comply with widely varying state requirements, including chemical labels and placarding. The OSHA hazard communication standard was a win both for employee protection and chemical hazard training and for employers in their compliance struggles. This federal standard actually simplified employer responsibilities by establishing uniform requirements in all states. A safety and health program standard would achieve a similar result for employers in standardizing the elements of an effective workplace safety and health program.

Considering that most OSHA standards are out of date, the agency also should focus on updating existing standards to reflect new data and insights gained in the intervening years since their issuance. It is equally important for the agency to move forward in developing regulations in new and emerging areas of concern, including workplace violence, nanotechnology, temporary and contract workers, and workplace stress and fatigue.

OSHA also must regain its safety and health leadership role, and OSHA staff need to reclaim their role as safety and health experts. On the enforcement side, OSHA cannot continue to rely on the model it adopted 50 years ago. Times have changed, industry has changed, and new hazards have surfaced. OSHA coverage has moved beyond the manufacturing, construction, and maritime industries. Better integration of enforcement and cooperative programs is needed. These two areas are critical to OSHA’s balanced approach, and they need to work together to advance health and safety.

I would suggest revisiting the Maine 200 Program concept from the 1990s, which offered OSHA assistance to employers with a history of accidents and injuries. The program was “voluntary,” in that these employers could work cooperatively with OSHA or they would be inspected. OSHA tried to implement this program on a national level but was sued and lost. With some adjustments, this approach could serve as the basis to transition away from the old enforcement model. It would also allow OSHA’s free consultation service to work directly with OSHA enforcement—something that has not been done before.

Lastly, OSHA has two recognition programs for excellence in safety and health: the Voluntary Protection Program and the Safety and Health Achievement Recognition Program. These programs should be combined.