Winning Safer Workplaces: The State-plan Switcheroo

by Matt Shudtz

February 09, 2015

In Kansas and Maryland, two states separated by geography and politics, Republican state lawmakers are touting plans that could seriously alter the institutions that workers in those states rely upon to keep them safe on the job.

Two weeks ago, Maryland Delegate (now State Senator) Andrew Serafini introduced a bill that would make drastic changes to the way the Maryland Occupational Safety and Health agency (MOSH) does its job. So drastic, in fact, that the feds would likely have to step in and take over the state’s program. The biggest problem with the bill is a requirement that the agency send employers a letter, warning them that MOSH inspectors are on the way. Tipping off employers is bad policy for an enforcement agency trying to regulate conditions that can be easily be disguised or altered. In many cases, it’s also a criminal act.

The bill has a few other features that likely wouldn’t sit well with the federal OSHA auditors, who annually review state-plan agencies’ policies and practices to ensure that they continue to operate programs that are at least as effective as what Fed-OSHA is doing in other states (not all states run their own state-plan programs). For example, the bill would prevent MOSH from issuing fines in a number of circumstances that would lead to citations in other states. Given the evidence that shows inspections and citations lead to safer workplaces, this kid-glove approach to enforcement puts workers at risk and creates a policy that is not as effective as the Fed-OSHA approach.

Given the drastic changes to MOSH policy that would come from implementing HB 192, and the likelihood that Fed-OSHA would find the changes put MOSH out of compliance with federal law, you have to wonder whether Senator Serafini’s real goal is to eliminate MOSH altogether.

In Kansas, Republican lawmakers have taken a more direct approach, but with the opposite intent. The Sunflower State’s right wing is trying to figure out whether the business community would be happier if the state had its own state-plan regulatory and enforcement program. After obtaining a report from state officials that explained the “at least as effective as” requirement for state programs, a split formed in the state’s Republican delegation. Some saw no point in taking on the added costs of running the state program if they couldn’t roll back protective regulations. Others seemed to think that the potential for local control over the program outweighed the costs.

It is difficult to answer the question of whether a state-plan program or reliance on Fed-OSHA is better, regardless of whether your goal is to protect workers or mollify business owners’ fears of being held accountable for unsafe working conditions. One issue is clear, though. Public sector workers are often left in the lurch when states rely entirely on Fed-OSHA. State-plan states must develop regulations and enforce them in public sector settings (schools, hospitals, correctional facilities, etc.), but most states that rely on OSHA for workplace safety enforcement do nothing for state and local government employees. The exceptions are the public sector-only plans in Connecticut, Illinois, New Jersey, New York, and the Virgin Islands, where a state focuses on public-sector workers’ safety and Fed-OSHA handles the private sector.

The effect is pretty clear. BLS keeps some numbers on public-sector injury and illness rates. All the usual caveats apply (injury rates are a questionable way to measure workplace safety; on the other hand, numbers from unionized workplaces tend to be more accurate because workers are better protected against retaliation for reporting injuries). That said, BLS’s data indicate that injury and illness rates in state-plan states are generally better than in Fed-OSHA jurisdictions. By my count, 17 of 25 state-plan states have public-sector injury and illness rates at or below the national average (the BLS numbers don’t include U.S. territories). Regulation and enforcement matter, and strong state-plan programs have a positive impact on state and local employment.


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Also from Matt Shudtz

Matthew Shudtz, J.D., is the Executive Director of the Center for Progressive Reform. He joined CPR in 2006 as policy analyst, after graduating law school with a certificate in environmental law.

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