As 2018 ends and we take stock of the developments in workers’ rights over the first half of the Trump administration, there is little forward progress to report. This administration, acting with minimal to no congressional oversight, has consistently neglected to protect America’s workers, instead rolling back and delaying numerous Obama-era regulations and safeguards, ignoring emerging hazards from climate change and new technologies, and restricting traditional inspection and enforcement in favor of self-reporting and compliance assistance.
Instead of focusing on the past and the negative, let’s look forward to 2019. If it wants to, the Trump administration has an opportunity to change course next year, and work with the 116th Congress to prioritize America’s workers. In the likely event President Trump and the Republican majority of the Senate continue on the same path, the new Democratic majority in the House of Representatives can bring about much-needed change, or at least spotlight the need for change, through oversight, budgeting, and legislation. Here are just a few reforms that would go a long way toward guaranteeing workers across the country safe and healthy working conditions. Of course, this list is by no means exhaustive, but would certainly be a huge improvement over the status quo.
Increase OSHA’s budget so the agency has resources to adopt and enforce strong standards. Just this week, the Bureau of Labor Standards released its annual Census of Fatal Occupational Injuries, reporting that 5,147 on-the-job fatalities occurred in 2017. While this number is 1 percent lower than in 2016, it’s still 562 more total deaths than in 2013, the year with the lowest number of fatalities and the lowest rate of fatal work injuries per 100,000 full-time equivalent workers (at 3.3). If the Occupational Safety and Health Administration (OSHA) were to focus on setting standards to protect workers from hazardous working conditions and on robust inspections and enforcement, the number of workers killed and injured would undoubtedly decline. But to carry out this work, OSHA needs adequate resources, which it currently lacks. Thus, it’s counterproductive for President Trump to propose slashing OSHA’s budget year after year. In 2019, Trump and Congress should follow through on their campaign promises to working families by ensuring OSHA receives a sizable increase in its budget for standard-setting and enforcement.
Ensure OSHA collects and utilizes data from employer’s injury and illness logs to set inspection and enforcement priorities. In May 2016, OSHA took concrete steps to improve tracking of workplace injuries and illnesses by finalizing a rule requiring employers to submit injury and illness records electronically to the agency. At the time, OSHA emphasized that the rule would allow the agency to utilize the data submitted electronically by employers to prioritize enforcement and compliance assistance activities by targeting its limited resources to the most dangerous workplaces. Yet under the Trump administration, the agency decided to delay enforcement without properly seeking public comment, prompting a lawsuit against the agency that is currently pending. Then, OSHA proposed to roll back the rule to require all employers to submit only a summary form, rather than requiring large employers (those with 250 or more employees) to submit detailed data. As I’ve explained in a separate post, OSHA’s reasoning for the rollback is based on bogus and unfounded privacy concerns. Yet OSHA is moving forward, and the rollback is currently pending review by the White House Office of Information and Regulatory Affairs (OIRA). Some oversight from Congress might induce OIRA to send the flawed rule back to OSHA. OSHA should then withdraw the rule completely and begin enforcing the 2016 final rule, which was based on sound reasoning and analysis. The 116th Congress should also hold oversight hearings to ensure the agency is utilizing the data it collects to prioritize inspection and enforcement activities.
Boost the maximum penalties OSHA imposes against employers for health and safety violations to levels that deter bad actors from breaking the rules in the first place. The Occupational Safety and Health Act (OSH Act) authorizes OSHA to impose two types of penalties against violators—civil or criminal—but in both cases, the maximum penalties allowed are paltry. For instance, if an employer knowingly disregards or acts with plain indifference to workers’ health and safety (a willful violation) and a worker is killed as a result, the maximum penalty for a first offense is $250,000 and/or up to six months in jail, or if a corporation, the maximum is $500,000. If that same worker, under the same circumstances, is severely injured but not killed, OSHA can impose no criminal penalty at all. Accordingly, most penalties imposed by OSHA are civil, which max out at a much lower amount. For 2018, the maximum civil fine for a willful violation is $129,336, and for a serious violation (one where the employer knows or should know the action could cause serious injury or death), the maximum is a mere $12,934. The civil fines adjust annually based on inflation, but the increase is negligible. Further, OSHA often reduces penalties it initially assesses to entice employers to settle their cases. In 2019, Congress should pass legislation that substantially raises both the civil and criminal penalties available under the OSH Act. In addition, OSHA should stop reducing penalties as a matter of routine practice. Employers responsible for endangering or killing workers should receive much more than a slap on the wrist. The penalties need to be adjusted so that employers conclude that cutting corners is not worth the risk.
Ensure OSHA acts to protect workers’ health and safety from emerging hazards associated with climate change, like extreme heat. Numerous studies indicate that extreme heat is the most significant and obvious climate-related hazard workers will encounter as temperatures rise. Without adequate safeguards in place, increased exposure to extreme heat may lead to a higher incidence of heat-related illnesses and fatalities among indoor and outdoor workers. This past July, more than 125 organizations, including CPR, petitioned OSHA to institute a protective standard to keep workers safe from extreme heat. OSHA has yet to respond. Significantly, OSHA could address the issue without acknowledging what the President refuses to: that climate change is real. There’s already plenty of extreme heat to warrant action. In 2019, OSHA should grant the petition and begin developing a strong standard. Rulemaking by OSHA can take upwards of a decade, so it is imperative the agency get working as soon as possible, as temperatures and humidity are already on the rise. In the likely event that OSHA doesn’t act in a timely manner, Congress should pass legislation mandating agency action. Congress should also hold hearings to assess other climate hazards workers will encounter and evaluate potential solutions.
