Security issues in the workplace

OSHA Standards

The history of Occupational Safety and Health Administration (OHSA) has been filled with controversy and contentiousness (OSHA act). Created in 1970 by the U.S. Congress, it was intended to protect workers from harm while in the workplace. It was the first time that a national program was designed to protect the workforce from job-related death, injury and illness. Unfortunately, as well intentioned as OSHA may have been, confusion and criticism have surrounded the agency from its inception. Too often, the agency's issued standards have been too confusing for those responsible for enacting them or interpreting them to understand or such standards were suddenly changed within a few days after the original standard was announced. As a result, the application of OSHA standards has led to considerable litigation.

The Occupational Safety and Health Act of 1970(OSHA) is the source of OSHA's authority. Contained in the language of the Act are no specific standards relative to safety in the workplace. The act merely created the agency and granted the agency the authority to establish the necessary standards and the enforcement of the same standards. This approach was taken by Congress in recognition that workplace safety and health was a complicated and unique issue that was best left to experts in the field to address.

From the beginning OSHA has been shackled by the constant tensions between safety advocates, workers, business owners. In order for the legislation to be passed that actually created OSHA, compromises had to be made that made OSHA enforcement difficult. The strength of the business lobby forced the U.S. Congress to include a "notice and comment" provision in the act creating OSHA. As a result, OSHA's enforcement process has been quite slow. Notice and comment rulemaking is a procedure under which a proposed federal rule must first be published in the Federal Register and be open to comment by the general public. In theory, the notice and comment procedure is intended to increase democratic participation but what it does pragmatically is create a slow, burdensome bureaucracy; a bureaucracy that often threatens workplace safety.

The OSHA rule-making process begins with the agency drafting a safety standard regarding some aspect of workplace safety. The drafting of this standard may done internally or be the result of an industry associated committee that has been formed to address a particular concern. All such suggested standards are supported by scientific data and the agency is required by statute to publish all such data so that the public can review and possibly challenge it. At this stage delays often occur as affected and concerned groups and individuals often mount legal challenges to the testing methods used by the agency. Even if litigation is not pursued, this stage also allows interested individuals and groups to submit written comments that the agency is required to address.

Following the publication of the research data, OSHA must conduct public hearings on the suggested standard and associated enforcement rules. At these public hearings the agency officials are subject to questioning by interested parties. This process can be quite extensive depending on the reach of the proposed standard. Many standards are enacted with little fanfare or delay but standards such as those related to ergonomics standards involved over nine weeks of hearings and the testimony of over 700 witnesses. Once the public hearings are completed the agency then internally reviews the comments and testimony and makes adjustments to their proposed standards based on the public testimony and comments. This final step can proceed expeditiously in cases where there is little public interest in the standard to extensive delays as the agency is required by law to amend the standard to reflect any legitimate concerns raised. OSHA is required to offer a rational explanation for any failure to change its standard in reaction to any legitimate concern raised through the testimony and comment process. Once the amendment procedure has been implemented, the standard is published. At this stage legal challenges can again be mounted which can further delay the enactment of the proposed standard.

As evidenced by the explanation of the process that OSHA must use in order to place a standard in place it is easy to understand the problem that OSHA has in affecting any expedient change in the workplace. The extended nature of this process has made it difficult for OSHA to react to problems and confusions relative to the enforcement of its rules and standards. If they were forced to start over every time an ambiguity or contradiction appeared, the safety enforcement process would come to a standstill. To avoid this occurring, the agency has developed an informal opinion letter process wherein the agency provides guidance to employers as to how best to comply with a particular standard. This often avoids the agency being forced to start the standard development process from the beginning.

This informal process works well when the stakes are low and where employers are not faced with considerable compliance costs but the agency has been subject to considerable criticism in circumstances where it resorted to the use of opinion letters in contentious circumstances. In such circumstances employers and workers both have argued the OSHA has attempted to circumvent the burdens of the rule making process.

Over the years there have been a number of notorious occasions where OSHA has come under considerable criticism for going forward in enforcement despite the presence of ambiguities and confusion relative to the language of the standard. As indicated earlier, one of the most acrimonious OSHA standards have involved its attempt to enforce those related to ergonomics (Institute of Medicine, 2001). OSHA had enacted these standards in response to claims that over 600,000 repetitive stress injuries were costing workers and employers lost work time. These standards required employers to implement an ergonomics program that was geared to manage musculoskeletal injuries in manufacturing jobs, manual labor positions, and any job where an employee has suffered a musculoskeletal injury. From the beginning the standards set by OSHA have been under attack from the insurance industry and employer trade organizations as being too vague and too expensive to implement. Insurers have argued that the standards will result in inflated workers compensation awards while employers are arguing that the costs of implementing the safety standards outweigh the benefits realized for the workers. Such disputes are typical of the problems encountered by OSHA whenever it attempts to exercise its authority in the workplace.