According to reports, Brain had been eager to travel to Texas for the relief effort. He had become an electrical lineman just a year before, after attending training courses at the Southeast Lineman Training Center in Trenton, Georgia. He felt that working as an electrical lineman was his true calling, according to his step grandfather Philip J. Lorenz III, a staff writer for the Herald Chronicle. At the time of Brain’s death, Lorenz was reporting on the relief effort after Harvey, never expecting he would be covering the death of his grandson.
The federal Occupational Safety and Health Administration (OSHA) conducted an inspection of T&D Solutions following Brain’s death and cited the company for three serious violations: failing to properly train employees on safety hazards related to their job, allowing an untrained person to operate an aerial lift, and failing to protect workers from incidental exposure to energized wires. The agency proposed a fine of $38,302 for the violations. T&D Solutions appealed, and the case formally settled. In the settlement, OSHA agreed to downgrade the original citations to one serious and one other-than-serious violation and a reduced fine of $25,868.
The story of Brain’s death is all too common. Workers helping to pick up the pieces after major weather disasters encounter a multitude of safety and health hazards as they begin rebuilding damaged homes and structures, restoring electricity and clean water, clearing fallen debris, cleaning up hazardous waste, repairing infrastructure, and reopening schools and public services.
In the aftermath of a major hurricane or other weather disaster, displaced residents struggle to get back to their way of life, and some never do. Residents who were working before a storm may be out of work temporarily or indefinitely, depending on whether their employer reopens. Even if they have a job to return to or find new work with the restoration effort, they may be living in temporary housing many miles from their place of work. And public transportation for getting to and from work may be unreliable or unavailable. Parents may not have access to childcare if schools do not reopen. Because of these barriers to employment, many resident survivors have trouble securing work.
Individuals who do find work with the restoration effort often encounter severe exploitation. Contractors looking for cheap labor bring in teams of immigrant workers, some documented and some undocumented, to perform cleanup and restoration work. Although the contractors often promise to provide food and housing and pay decent wages, many workers find that when they get to the storm-ravaged towns, they are forced to live in the damaged buildings they were hired to repair or are out on the streets and are severely underpaid or not paid at all. Further, they often do not receive proper training or protective gear for dangerous tasks. Undocumented immigrants rightfully fear police and immigration raids, as local police and employers regularly threaten them with deportation if they raise health and safety concerns, report wage theft to authorities, or seek out government assistance of any kind.
The following examines the way that subpar efforts to protect workers from unsafe and unhealthy working conditions effectively support, even exacerbate, the exploitative practices of companies seeking to make a quick buck off the devastation. Recommendations for protecting the health and safety of recovery workers follow.
Overview of Regulatory Framework: OSHA’s Organization and Authority
The Occupational Safety and Health Act of 1970 (OSH Act) was enacted “[t]o assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . .” The federal Occupational Safety and Health Administration (OSHA) is the primary agency tasked with implementing the law. The Act authorizes OSHA to enforce the law by promulgating hazard-specific health and safety standards, conducting inspections, and issuing citations to employers found to be in violation of those standards.
OSHA may also issue citations to employers who violate the Act’s “general duty” clause, which imposes a general duty on employers to protect workers from a recognized hazard that places them at risk of death or serious physical injury. This authority allows OSHA to issue citations against employers even when the agency has not adopted a hazard-specific standard; however, the agency must meet a higher burden of proof for general duty clause citations.
Federal OSHA’s standards serve as minimum requirements that apply to most private-sector workplaces throughout the country. Federal OSHA covers private sector workers in roughly half the states. The other states and territories have chosen to operate their own occupational safety and health programs under federally approved OSH plans in lieu of federal OSHA. At present, 22 states and one U.S. territory operate under an approved plan that covers both private and public sectors. Another five states and one U.S. territory operate under an OSH plan covering the public sector only, with federal OSHA maintaining jurisdiction over the private sector. Public sector workers in federal OSHA states are not covered by the Act.
Because neither Texas nor Florida operate state plans, federal OSHA was the primary cop on the beat when Hurricanes Harvey and Irma hit in 2017. Puerto Rico, on the other hand, does operate its own OSH plan, and PR OSHA is the primary worker health and safety agency in the territory. After Hurricane Maria hit Puerto Rico in 2017, PR OSHA was the primary OSH authority overseeing the recovery effort, although federal OSHA did provide some assistance with an emergency response team. In the U.S. Virgin Islands, federal OSHA maintains jurisdiction over the private sector, and the Virgin Islands Department of Labor, Division of Occupational Safety and Health (VI DOSH) covers public sector workers through its own OSH plan.
Minimal Protections from Common Hazards Encountered during Post-Disaster Response Operations
Workers involved in cleanup activities after a major storm will face a host of hazards, including ever-present hazards (e.g., falls or electrical hazards) amplified by the storm as well as new hazards that emerge as a result of the damage (e.g., floodwaters and debris). After flood conditions have subsided, workers will likely confront mold while repairing inundated buildings. Workers also may be exposed to contaminated floodwaters and toxic chemicals while performing a variety of cleanup tasks. Workers responsible for restarting operations at oil refineries and chemical plants may be put in harm’s way from uncontrolled releases of toxic chemicals during start-up. Some workers tasked with cleanup around Superfund sites will be exposed to hazardous substances. And workers may be exposed to dangerous substances like asbestos when cleaning up damaged homes and buildings.
For some of the hazards workers encounter, federal OSHA has promulgated standards that specify the protections that employers must provide in certain situations, such as when workers are restoring electrical power, handling hazardous materials, or entering into confined spaces. OSHA also maintains a website dedicated to hurricane preparedness and response, which offers a host of resources for protecting workers. Additionally, in states and territories that operate their own OSH programs, such as Puerto Rico, the state or territory may institute standards and programs that provide more protections than those of federal OSHA.
Yet workers in post-disaster areas commonly complain that employers do not provide them with even basic protective gear such as gloves, goggles, or masks to shield them from direct contact with mold, toxic chemicals, dead animals, and a host of other hazards. Many employers fail to provide their workers not only with essential safety equipment, but also with the proper training necessary to prevent injuries and illnesses. Further, employers may fire workers who get injured or sick, leaving them stranded without housing, food, and any source of income.
In the aftermath of storms, journalists and advocates frequently report on these abusive work practices. Thus, it would seem intuitive that OSHA would establish a major presence in post-disaster areas and ramp up its enforcement to protect workers from the many widely known abuses by employers after disasters strike. Such strong enforcement is critical because it levels the playing field, prevents unscrupulous employers from exploiting workers (or worse — injuring or killing them), and sends a message to all employers that the rule of law will be upheld. But in fact, it is common in the wake of a storm for OSHA to cease its programmed enforcement actions — i.e., planned inspections of worksites focused on finding violations and correcting them before an injury, illness, or death occurs. After Hurricanes Katrina and Rita hit Louisiana, for example, the federal government suspended programmed enforcement in many parishes affected by the storm. Likewise, following Hurricane Harvey at the end of August 2017, OSHA did not resume programmed enforcement until October 10, 2017.
OSHA claims that suspending programmed enforcement allows it to respond faster to immediate hazards reported by workers. In theory, OSHA can transfer the resources set aside for programmed enforcement to other unprogrammed enforcement (i.e., inspections in response to imminent hazards, fatalities and catastrophes, complaints, and referrals) and compliance assistance activities. Both are particularly important in the wake of a disaster because imminent hazards, fatalities, complaints, and referrals would theoretically increase when cleanup, recovery, and rebuilding activities are underway, as the tasks associated with these activities are some of the most dangerous workers perform any time of year, even when there is much less pressure to get the work done. The pressure to work fast and cheap is much higher in the wake of a storm. Compliance assistance is also important after a storm because a Certified Safety and Health Official (CSHO) can likely conduct multiple briefings or consultations in the time it takes to do a single inspection. But inspections can have longer and broader impacts if they result in citations and penalties.
Ideally, the appropriate response to a storm for OSHA is to continue programmed enforcement while ramping up unprogrammed enforcement and compliance assistance activities. OSHA should not need to reallocate its resources at a time when workers need the agency most. Yet because of limited agency resources, as discussed more below, the agency must make tough choices on how best to fulfill its mission. At this time, OSHA’s resource constraints are such that programmed inspections are already infrequent. For example, in July and August 2017, OSHA only performed 12 planned inspections of worksites located in Houston. If OSHA finds that suspending programmed enforcement will provide it the resources it needs to increase its presence in a storm-ravaged area, then this may be the right policy decision at this time. However, OSHA needs to reevaluate this decision often, rather than suspending enforcement after a storm as a matter of practice.
Furthermore, a decision by OSHA to suspend programmed enforcement should correspond to an increase in unprogrammed enforcement and compliance assistance activities. Enforcement data in Houston after Hurricane Harvey paints a different picture, however. In September 2017, the month after Harvey during which OSHA had suspended programmed enforcement, the agency not only dropped its planned inspections, but also dropped inspections in response to worker complaints and referrals.
Source: DOL Enforcement Data, https://enforcedata.dol.gov/homePage.php (as of July 23, 2018)
Given the news accounts and individual reports of exploitative practices happening during this period, it seems likely that the agency would receive more complaints and referrals after a storm. It is possible, however, that given the length of time it takes to file a complaint, workers simply did not file them or waited to file them. Another possibility is that OSHA received complaints and referrals, but chose to respond with compliance assistance activities rather than through the complaint/referral process as it normally would. But as noted above, citations and penalties can be more effective over the longer term than compliance assistance.
In fact, even with OSHA’s focus on compliance assistance after Hurricane Harvey, many workers involved in the response effort reported that their employers did not provide proper training or personal protective equipment. According to a survey of 361 day-laborers, in the weeks following Hurricane Harvey, 85 percent of undocumented immigrants who helped with post-disaster recovery efforts reported not having received any training for the worksites they were entering. In the same survey, 87 percent of respondents said they were not informed about risks related to unsafe buildings; 85 percent that they had not been informed about mold risks or risks of working in contaminated water; and 83 percent that they had not received training before working with fallen trees or electrical lines.
Although some workers buy their own gloves, glasses, and masks in an attempt to protect themselves, many cannot afford to do so. Further, because of a lack of affordable housing, many do not have access to clean water for showers, and are thus forced to go days without washing off the toxic dirt and chemicals. After Hurricane Katrina, workers in New Orleans reported that they had to “clean toxic mud left over from the hurricane without being provided with any protective gear or safety instructions,” and that they “complained about headaches and nausea” but their employers “d[id] not provide medical treatment for them.”
The resulting exposures can be deadly. For example, on October 16, 2017, roughly two months after Hurricane Harvey made landfall, a 31-year-old father and carpenter, Josue Zurita, died from a flesh-eating bacterial infection known as necrotizing fasciitis. Zurita was a native of Oaxaca, Mexico but had been living in Galveston, Texas, for 12 years to work and send money home to support his wife and daughter. In the wake of Harvey, Zurita was helping repair damaged homes in Harris and Galveston counties. He went to the hospital on October 10, 2017, after a wound on his upper left arm became infected. Health officials said he most likely contracted the deadly bacterial infection when hurricane debris or floodwater came into contact with the open wound. Zurita died six days after receiving the diagnosis.
In addition to OSHA’s lax enforcement of existing worker protections, the agency also has not fulfilled its mandate to ensure safe and healthful working conditions for workers by adopting new standards to address remaining hazards. The agency routinely declines to exercise its authority to promulgate standards for well-known hazards, many of which arise during post-disaster response operations, such as infectious diseases, heat stress, or ergonomic stressors. As a result, if the agency does cite violations of these well-recognized hazards, it has to do so under the General Duty Clause, which imposes a higher burden of proof on the agency than that for citing violations of hazard-specific standards. Because of the higher burden of proof, the agency rarely cites employers for exposing workers to such hazards using its general duty clause authority.
For example, exposure to high heat and hot environments is a widely recognized occupational hazard for outdoor and indoor workers that can cause injuries and illnesses ranging from cramps to death. Heat stress is particularly relevant in post-hurricane response because many of the areas struck by hurricanes experience tropical and subtropical climates, including Houston, and because hurricanes strike during the hottest months of the year. The National Institute for Occupational Safety and Health recommended that OSHA adopt an occupational heat standard in 1972, 1986, and again in 2016, but the agency has repeatedly declined to do so. Instead, OSHA relies on the general duty clause to cite employers for failing to protect workers from heat stress. This is clearly insufficient. For example, in FY 2012, the Labor Department reported 31 worker fatalities and 4,120 heat-related injuries and illnesses, but OSHA only cited employers in 17 cases.
The problems workers face only worsen if they suffer an on-the-job injury or become ill. Workers’ compensation coverage often fails to help workers recover. In OSHA's 2015 report, Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job, the agency found that employers regularly evade their responsibility for worker health and safety and that state workers’ compensation systems do not provide injured workers the full benefits promised in exchange for giving up their right to file suit against their employers. According to figures cited in the report, “[w]orkers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses,” and “workers, their families, and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent.”
Workers employed by companies that have “opted out” of their states’ workers’ compensation system — including many in Texas — may have even less chance of recovering benefits under employers’ “alternative benefits plans.” According to ProPublica, these alternative plans “provide lower and fewer payments, make it more difficult to qualify for benefits, control access to doctors and limit independent appeals of benefits decisions.” When there is not workers’ compensation coverage, a worker may have the option to sue their employer directly in court, but this is not always possible since it is sometimes difficult for workers injured during recovery operations to determine the appropriate employer to sue.
Weak Enforcement Efforts and Resource Shortfalls for the Long Term
Even without the resource challenges inevitably created by hurricanes and other weather disasters, OSHA has limited enforcement resources. Former OSHA officials and state level advocates in regions affected by the storm agree that OSHA’s limited budget is the primary obstacle to the agency’s ability to conduct effective post-disaster operations. As Jordan Barab, the former deputy assistant secretary of OSHA during the Obama-era has written: “Paying for hotels, travel, per diem, etc. is expensive for an agency already strapped for resources to conduct its normal business. Additional materials have to be printed, meetings are held, training is conducted. In addition, taking enforcement and compliance assistance staff from other understaffed areas around the country leaves OSHA offices even more understaffed, leaving workers there more vulnerable.”
According to the AFL-CIO’s annual “Death on the Job” report, during Fiscal Year 2017, OSHA only had 1,821 inspectors (764 federal and 1,057 state) to inspect the 9 million worksites covered by the OSH Act. A mere 85 OSHA inspectors are assigned to the entire state of Texas, where there are almost 12 million workers. That is, there is only one inspector for every 138,891 workers, compared to the national average of one inspector per 77,908 workers and the International Labor Organization’s recommended benchmark of one inspector per 10,000 workers. Florida is even worse, with a mere 59 inspectors to cover nearly 8.5 million workers across the state, equivalent to one inspector for every 140,836 workers.
Despite the limited number of inspectors in any particular state at a given time and the need to form a larger presence in storm-affected areas, OSHA’s budget is still too small for the agency to set aside funds to send officials to assist with disaster response efforts. That means OSHA has to use its normal operating budget to respond, eating into its regular enforcement activities across the nation. Although the Federal Emergency Management Association (FEMA) can provide supplemental assistance, the state must make a formal request and contribute 25 percent of the funding, which many states are unwilling to do.
Despite the urgent, and glaringly apparent, need for additional resources, President Trump’s proposed budget requests cut OSHA’s budget and many critical programs. Additionally, Trump proposed to eliminate the U.S. Chemical Safety Board, an agency that investigates explosions of chemical plants, and to eliminate the Susan Harwood Training Grant Program, which gives grants to nongovernmental organizations and worker centers that provide workers with health and safety training and assist with relief and recovery efforts in the wake of storms.
What Should Be Done?
The health, safety, and economic harms that disasters impart on individuals and the communities in which they work and live will only continue to escalate as extreme weather events and natural disasters become more frequent and severe due to climate change. Each storm brings with it lessons to be learned and applied to the next storm’s response and recovery effort.
To protect workers from these unjust harms as they rebuild communities, strong and equitable protections must be in place and well enforced across all levels of government.
Provide adequate resources to OSHA
The solution begins with ensuring that agencies like the Department of Labor and OSHA have the budget and staff resources they need to adopt and enforce strong safeguards to protect workers from hazards — whether safety and health hazards or deplorable wage and hour policies that leave workers without fair pay for a hard day’s work, or in some cases, with no pay at all. Congress and the President must provide funding to these agencies so they can fulfill their missions.
Develop and implement protective standards before the next crisis
OSHA must promulgate stronger standards to address known and emerging risks, such as for heat stress, ergonomics, and infectious diseases and ensure engineering controls and other measures are in place long before a disaster strikes. Standards are much more effective than relying solely on compliance assistance and spotty enforcement operations after the fact. With standards in place, employers and workers would already be familiar with the hazards and trained on prevention when the next storm hits.
Institute collaborative policies and programs with equity in mind
Federal regulatory agencies must institute policies and practices and implement strong standards with inclusion and equity in mind so that the costs of responding to weather disasters are not borne by the most vulnerable members of society. Agencies should collaborate with each other and with state and local bodies ahead of disasters so that the response is well coordinated. Displaced residents cannot get back to work or help with the recovery effort unless they have stable temporary housing and access to clean water, food, medical care, reliable and consistent transportation, and schools for their children. Federal agencies also should exercise greater oversight of contractors and subcontractors who promise jobs and do not follow through with stable housing or work and who underpay or never pay the workers. Instead of ramping up Immigration and Customs Enforcement efforts, the federal government should ramp up efforts of agencies whose mission is to protect the workers who are rebuilding after the storm.
Enforce Standards in the wake of disaster
Instead of suspending enforcement in the immediate aftermath of a storm, OSHA should continue programmed enforcement while ramping up unplanned inspections and compliance assistance. Suspending planned inspections allows established companies to operate in violation of health and safety rules at a time workers need protections most. Although OSHA’s limited budget currently requires the agency to make tough choices on where to allocate its resources, it should not suspend enforcement as a matter of practice. Rather, the agency should reevaluate its policy decisions often in light of best practices for responding to a storm, and determine the budget needs required for it to carry out those practices. Further, a decision by OSHA to suspend programmed enforcement should correspond to an increase in unprogrammed enforcement and compliance assistance activities, and that data should be made available to the public in an accessible location on the agency’s website.
Target hazards common to disaster recovery operations
OSHA should also institute emphasis programs to target hazards commonly associated with response and recovery operations. For example, after Superstorm Sandy hit the northeastern U.S. in 2012, OSHA Region II implemented a local emphasis program targeting worker health and safety issues related to the response and recovery effort in all New York and New Jersey counties affected by the storm. OSHA should assess the effectiveness of this emphasis program and consider implementing similar programs in storm-affected areas in the future.
In state plan states, go beyond OSHA
At the state level and local level, there is also opportunity for progress. When federal OSHA has not adopted a standard to address a specific hazard, state legislatures and agencies may impose their own standards. For example, a state could adopt standards to protect workers from heat stress, infectious diseases, or ergonomic risks. Even when a federal standard is in place, states and territories that operate their own OSH plans can impose stronger protections than provided by the federal minimums. Equally important, state OSH agencies must ramp up enforcement to ensure employers follow the standards. OSH agencies need to be prepared to mobilize after a storm, and must work with local worker centers, unions, and the public to ensure workers are heard and their concerns addressed.