Last week, workers’ advocates at the Southern Poverty Law Center and Nebraska Appleseed got the official word that OSHA will not develop new regulations to protect the men and women who do the dirty work of turning clucking chickens into boneless cutlets. It’s an industry where vulnerable workers—mostly women, immigrants, and folks geographically isolated from other job opportunities—face great hazards from the strains of repetitive motion. Some of the plants process tens of thousands of birds on every shift, and a recent NIOSH review of one facility uncovered evidence of chronic musculoskeletal injuries in more than 40 percent of the workers who took part in the evaluation. The industry has a problem.
Lobbyists from the Chicken Council will proudly proclaim that the industry’s injury and illness rates have been dropping for years. But those numbers simply cannot be trusted. The chronic pain that workers suffer doesn’t always meet the definition of a reportable injury because it can be treated with first aid and doesn’t necessarily require time away from work. So even if you’re the kind of company that’s inclined to report accurately, risking elevated workers’ comp premiums, workers’ experiences of pain and suffering don’t match up with the numbers.
OSHA’s recent inspection of a Wayne Farms plant in Alabama shows that companies can create sophisticated systems for marginalizing injured workers. There, the scheme involved questionable practices by company nurses that forced workers back on the lines, even when they repeatedly requested medical care because of the strains of their work. Other workers will tell you that disciplinary programs, both official programs and non-sanctioned retaliation, can discourage reporting. No worker, however, will tell you that the hazards in these facilities are well controlled.
The hazards still present grave risks because OSHA has not created rules that would level the playing field across the industry. As advocates from SPLC and Nebraska Appleseed made clear in their petition and subsequent outreach to OSHA, companies must redesign jobs, reduce the pace of work, improve job rotation schedules, and employ a host of other improvements to properly address the ergonomic hazards.
To be sure, forcing those sorts of changes on any industry would be difficult, to say nothing of an industry that is built on political acquiescence to its demands at every stage of its integrated structure, from growing birds to shipping them to local supermarkets. And the poultry industry would surely have plenty of support in fighting an OSHA rule. Fearing that OSHA ergonomics rulemaking in this area might lead to similar rules in other industries, the trade associations that spent inordinate effort to defeat OSHA’s 2001 ergonomics standard would likely be right there to fight this rule, too.
But difficult politics is a weak excuse for inaction, when hundreds of thousands of workers face such serious risks of chronic injury.
By denying the petition, OSHA now faces a potential lawsuit under the Administrative Procedure Act. Such cases, built on the theory that the agency acted arbitrarily or capriciously in denying the petition, are notoriously difficult for advocates who want the agency to get off its duff. They are especially difficult when the agency denies the petition on the grounds that it lacks the resources to start the rulemaking process because of other priorities. Courts are loath to tell agencies how to manage their budgets and staffing. But I hope that won’t stop the courageous advocates at SPLC and Nebraska Appleseed. OSHA has a long history of failing to act until litigation spurs on regulation.
