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Safety in Numbers?


Safety in Numbers?

May 2, 2007
Urban PolicyOther
Legal ReformOther

Last week’s New York Times featured a story by Stephen Labaton “exposing” the Bush Administration’s Occupational Safety and Health Administration (OSHA) for failing to promulgate new regulations protecting workplace safety. The article laments that since the president took office, OSHA has imposed “only one major safety rule”�and that was as a result of a court order.

But here’s the rub: under Bush’s tenure, American workplaces have actually gotten safer. From 2000 to 2005, workplace fatalities fell from 5,920 to 5,702—a slightly better annual rate of improvement than under Bill Clinton’s tenure. Non�fatal workplace injuries have also fallen from 6.1 to 4.6 cases per 100 workers, a decline of almost 25 percent.

Apparently, these real results matter less to the Times and its quoted experts than the fact that Bush—who explicitly campaigned on a platform of reducing regulatory complexity�has rolled back favored policies, streamlined others, embraced voluntary compliance programs, and failed to regulate in safety advocates’ favored areas. The use of voluntary compliance approaches as opposed to top—down mandates, and the fact that the administration has brought in regulators with real industry experience rather than careers exclusively in government, advocacy, or academic circles, seems to trouble the self�appointed guardians of our safety.

The Times specifically points to three examples in which OSHA has failed to promulgate mandatory regulations: protection from silica dust in blasting areas; from noise in construction sites; and from exposure to the additive diacetyl in popcorn manufacturing plants. The Times’ first two examples are given cursory treatment, but consider: it’s hardly news to demolition workers that blasting produces dust, nor to construction workers that their workplaces can be loud. Protective masks and earplugs are commonplace and inexpensive.

These caveats, while self�evident, are important. If workers have equal knowledge about their risks, they’ll take appropriate precautions�or insist on a wage risk premium for compensation.

In some instances, employers do have better information about the harms to which workers are exposed than do employees. That’s the accurate premise behind workers’ compensation and worker protection laws. As America industrialized, workplace injuries multiplied, and traditional tort law proved an expensive and inefficient mechanism for preventing and remedying such harms. States began widely adopting workers’ compensation plans to give relatively rapid and consistent relief to workers in lieu of tort remedies, and to give employers reasonable incentives to offer safe workplaces.

OSHA itself didn’t exist in this country until 1970, and its record has been mixed. While workplaces have continued to get safer, it’s hard to know to what extent OSHA has been responsible and to what extent American workers have demanded higher wage premiums for safety, leading manufacturers to ship riskier jobs overseas. What’s clear, though, is that OSHA’s regulations had become—and significantly remain—a major cost of doing business in the United States.

None of which is to say that OSHA cannot play a constructive role. There remain many industries in which workers face sometimes unapparent risks. Demolition workers may well know their sites are dusty, but they may be unaware of possible links between silica dust and serious lung impairment. Popcorn workers may realize they’re breathing fumes but not know suggested connections between diacetyl and bronchiolitis obliterans.

That said, even assuming that the best science supports the view that these chemicals increase risk for the diseases in question, it does not follow that OSHA should promulgate sweeping regulations banning the use of silica or diacetyl in these workplaces. Traditional workers’ compensation laws specify real remedies for workplace injuries up to and including death—even if the employer is not shown to be at fault—which gives employers a strong incentive to minimize workplace accidents. Moreover, in today’s legal environment, plaintiffs’ lawyers regularly get around the workers compensation laws (which were drafted to replace torts) and win their clients big verdicts above and beyond what’s offered in workers’ compensation systems. Eric Peoples, featured in the Times piece, won a $20 million jury verdict.

If anything, the overlap of tort law and workers’ compensation likely overdeters American employers from pursuing risky but socially beneficial activities. Traditional OSHA regulations have added significant additional costs to this mix, all leaving American manufacturers at a real competitive disadvantage. OSHA would be well�served not only to scale back onerous compliance requirements but also to suggest approaches, consistent with the best available science, that offered employers safe harbors preempting state tort law remedies. The Bush administration’s safety record to date is impressive, but it hasn’t gone far enough.