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Press Release: Many State-Run Agencies Are Not Adequately Protecting Workers

Many State-Run Agencies Are Not Adequately Protecting Workers

Annual Evaluation Shows Low Penalties, Insufficient Staffing Plaguing State OSHA Programs

Note: More state-specific observations are available below the boilerplate.

Many state workplace safety agencies are falling short in their mission of providing safety and health protections to their states’ workforces, the National Council for Occupational Safety and Health (National COSH) said today after analyzing the U.S. Occupational Safety and Health Administration’s (OSHA) annual evaluations of the state programs. 

Under the U.S. Occupational Safety and Health Act (OSH Act), state-run OSHA programs must be at least as effective as federal OSHA. Each year, OSHA issues Federal Annual Monitoring and Evaluation (FAME) reports that measure how state-run programs perform.

This year, federal OSHA found a wide range of problems and shortcomings in the state programs, including inadequate enforcement staffing, low fines, poor investigative procedures of whistleblower complaints, slow response to complaints and failure to verify that employers had corrected violations for which they had been cited.

“This year’s reports call into question whether workers in some states that run their own OSHA programs are adequately protected on the job,” said Tom O’Connor, executive director of National COSH. “From staffing shortages to insufficient penalties against negligent employers, some of these state-run programs fail to acceptably enforce worker safety rules.”

Consider:

  • A number of states have fallen far below the enforcement staffing benchmarks agreed upon between federal OSHA and the state programs, calling into question whether these programs are capable of enforcing the OSH Act in their states. Cuts to state budgets likely will further exacerbate this situation.
  • Many states have very low fines for serious violations, even for repeat violators in some states. But because fines are so low, many companies may factor in the penalties simply as a cost of doing business instead of ensuring safe and healthy conditions for their employees.
  • In a number of states, nearly all whistleblower complaints are dismissed as “without merit.” This raises doubts about whether whistleblowers who speak up about unsafe conditions are receiving adequate review and protection.
  • Many states regularly classify as “non-serious” violations that federal OSHA believes should be considered “serious,” resulting in lower penalties.
  • A number of states offer automatic penalty reductions for “cooperative” employers without any justification.
  • Some states fell far below their inspection goals for the year.

Some particularly egregious examples include:

  • In South Carolina, the average penalty for “serious” violations is a mere $538 (compared to about $2,000 in federal OSHA jurisdictions and a $7,000 maximum penalty).
  • Nevada’s program had an extraordinarily high 53 percent turnover rate due to low pay and mandatory furloughs, severely hampering their enforcement capacity. As a result, the state fell 41 percent short of meeting its inspection goal.
  • In North Carolina, penalties for repeat violations are extremely low – averaging only $2,663, compared to $14,326 in federal OSHA jurisdictions.
  • California’s OSHA program is drastically understaffed, with 186 enforcement staff, compared to the 805 positions that federal OSHA determined are the minimum necessary for the state to be at least as effective as federal OSHA, as required for a state program to operate.
  • Alaska’s program has failed to meet its inspection goals for five consecutive years. This year, it fell short of its goal by 38 percent.
  • Indiana’s OSHA program took more than a month, on average, to initiate an inspection in response to a complaint of unsafe conditions by a worker. Federal OSHA considers 10 days to be the maximum reasonable average for Indiana.
  • Arizona’s OSHA program is enforcing a state law on residential fall protection that is significantly weaker than federal OSHA standards, failing to protect construction workers who are working at heights up to 15 feet.

“The minuscule fines imposed by state OSHA programs function more as a slap on the wrist than actually forcing employers to clean up their acts,” O’Connor said. “With the maximum allowable fine already woefully insufficient, further reducing penalties against negligent – even repeatedly negligent – employers hardly incentivizes them to operate a safe workplace.”

Repeated attempts to amend the OSH Act to raise these maximum penalties – even to keep up with inflation over the decades since they were established – have failed in the U.S. Congress.

Some state programs, however, have exceeded federal OSHA in developing innovative new outreach, education and enforcement initiatives. For example, several states – including Washington, Oregon, New York, New Jersey, Connecticut and Illinois – have issued rules protecting workers from violence on the job, particularly in healthcare settings. And in Oregon, the state OSHA program has developed a range of specific standards regarding safety in agricultural work, going far beyond federal OSHA. A number of states also have established mandatory safety programs and safety committees in certain workplaces, requirements that do not exist currently under federal OSHA.

California and Washington have adopted important rules that require employers to abate alleged hazards even while contesting fines. This ensures that worker safety is not continually jeopardized while an employer fights a violation.

“If more states adopt such these mandatory safety programs and ‘abatement during contest’ rules, worker safety can be further protected, even if state-run agencies are financially hamstrung,” O’Connor said.

To read the state reports, visit: https://www.osha.gov/dcsp/osp/efame/index.html. 

For a list of state-run OSHA programs, visit: https://www.osha.gov/dcsp/osp/index.html. 

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The National Council for Occupational Safety and Health is a federation of local and statewide organizations; a private, non-profit coalition of labor unions, health and technical professionals, and others interested in promoting and advocating for worker health and safety.

To learn more about the National Council for Occupational Safety and Health, visit:http://www.coshnetwork.org.

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State-Specific Observations

Arizona

  • Following state legislative action that weakened requirements for fall protection in residential construction, the Arizona Division of Occupational Safety and Health (ADOSH) is now enforcing a policy that fails to protect employees who work at heights up to 15 feet. Federal OSHA noted that this failure to provide adequate protection to residential construction workers puts in jeopardy the legal authority of the state to carry out its own OSHA program.

“ADOSH is enforcing [Senate Bill] 1441 which does not protect workers in residential construction between 6 and 15 feet and does not afford the same level of protection as Federal OSHA,” OSHA’s FAME report said. “ADOSH must require conventional fall protection for all residential construction work performed 6 feet or more above lower levels and take enforcement action requiring employers to use conventional fall protection.”

The report goes on to state that “Federal OSHA has determined Senate Bill 1441 renders the enforcement of fall protection in residential construction not ‘at least as effective’ as Federal OSHA’s residential construction fall protection requirements.” States must meet this standard of “at least as effective” as federal OSHA in order to retain their legal authority to run their own state OSHA program.

  • The average penalty imposed by ADOSH for “serious” violations is only $1,234, compared to $2,153 in federal OSHA jurisdictions and the $7,000 maximum penalty.
  • According to federal OSHA’s analysis, ADOSH misclassifies many violations as “non-serious,” leading to far lower fines against employers. Federal OSHA noted in the previous year’s report that “ADOSH’s policy on classification violations does not ensure violations that would be considered ‘Serious’ under the Federal FOM are classified as ‘Serious.’” This year’s report found that this problem persisted: “Continued analysis of the low rate of serious violations in ADOSH revealed a problem in classification of violations. This issue will be a focus during the onsite case file review at the end of FY 2013,” the report said.
  • Previous federal OSHA monitoring reports have noted a serious problem in meeting inspection goals in Arizona. This year, the state met its inspection goal, but only because it lowered the bar dramatically, reducing its goal by some 500 inspections, or one-third of its previous goal.
  • Federal OSHA noted numerous problems in the state’s procedures for investigating “whistleblower” complaints, including failure to ensure confidentiality for third-party witnesses, failure to document interviews with complainants and witnesses, and failure to fully and consistently analyze some aspects of complainants’ cases.

Indiana

  • Indiana OSHA (IOSHA) is seriously understaffed, threatening its ability to enforce adequately workplace safety and health laws. As the FAME report indicates, “IOSHA continues to operate well below the benchmark levels for staffing, and as of August 15, 2012, they were 24 Safety Compliance Officers and three Health Compliance Officers below their benchmark requirements.” IOSHA’s current number of safety compliance officers is less than half of the agreed “benchmark” level.
  • In a significant number of cases—nearly half of safety violations—IOSHA failed to verify that the employer had corrected the hazard within 30 days after the citation, as required by federal OSHA.
  • IOSHA was exceedingly slow in responding to complaints, averaging 32 days to initiate an inspection. This far exceeds the 10-day response time agreed upon between IOSHA and federal OSHA.
  • High staff turnover has left the program with a shortage of experienced staff, resulting in more time spent training and less in conducting worksite inspections.
  • Fines assessed by IOSHA for serious violations, on average, were only $1,400—one-third lower than that in federal OSHA jurisdictions.

 Nevada

  • Staff turnover in FY12 was an astonishingly high 53 percent. As OSHA’s FAME report indicates: “The imposed wage reductions, along with the pay step freeze, furlough days and mandate for all new state employees to be brought in at the first step of the salary range has created a revolving door for most compliance officers. The lack of experienced staff with more than two years’ experience has put the NvOSHA program at risk of not being able to sustain an effective program.”
  • The state failed to meet its inspection goals by 41 percent. This is the third year in a row that the state failed to meet its inspection goal. The goal was reduced from 2,132 to 1,900 inspections for FY 2012, and this year, the state failed to meet the reduced goals.
  • Nevada workplaces are rarely subject to random inspections because the state program’s meager resources are almost all directed towards responding to complaints. As the FAME report notes, “A high percentage (82%) of total inspections conducted are initiated by complaints (non-programmed inspections) which does not allow adequate resources for programmed inspections at high hazard worksites.”
  • Nevada OSHA compliance staff classified many violations as “non-serious” in cases in which serious injuries and even death had occurred.
  • Federal OSHA identified numerous shortcomings in the investigative process and documentation of “whistleblower” complaints.

North Carolina

  • The average penalty imposed by North Carolina’s OSHA program (OSHNC) for “serious” violations is a mere $943, compared to $2,153 in federal OSHA jurisdictions and the $7,000 maximum penalty.
  • Even fines for repeat offenders are extraordinarily low in North Carolina. While the average fine for a repeat violation in federal OSHA jurisdictions was $14,326, in North Carolina, it was a small fraction of that—only $2,663.
  • OSHNC categorizes a very high proportion of violations as “non-serious,” leading to far lower fines against employers.
  • Employers are often given an automatic 10-percent penalty reduction for being “cooperative.” Federal OSHA questioned the legitimacy of these reductions, noting: “A significant percentage of the case files reviewed included the Cooperation penalty reduction with minimal written justification or no justification at all. OSHA is concerned that the lack of justification may result in non-uniform application of the reduction.” Federal OSHA recommended that the state eliminate this reduction policy for “cooperative” employers. The state responded that it “has no intention at this time to eliminate the cooperation penalty reduction policy.”
  • Previous FAME reports have highlighted the state’s serious problem in collection of unpaid fines, totaling nearly $3 million in 2011. This issue was not addressed in the current FAME report.
  • The state program has 9 fewer compliance officers than required under its “benchmark” agreement with federal OSHA.

South Carolina

  • The average penalty imposed by South Carolina OSHA (SC OSHA) for “serious” violations is a mere $538, compared to $2,153 in federal OSHA jurisdictions and the $7,000 maximum penalty.
  • Fatality investigations were inadequately performed. As OSHA’s FAME report notes, “Over twenty-seven (27) percent of fatality investigation files reviewed did not contain adequate supporting documentation and several violations were either not addressed at all or minimally.”
  • Federal OSHA cites numerous shortcomings in SC OSHA’s case investigation and documentation procedures. For example: “Case file documentation consists of checklists and/or fill in the blank forms that provide little or no narrative description of the hazardous condition. Employees not always interviewed; documentation inadequate or missing; sampling forms lacked information on operations being sampled.”
  • Violations are often misclassified as low severity rather than medium or high severity. Violations also are incorrectly rated as low probability rather than greater probability. These misclassifications result in significantly lower penalties.
  • SC OSHA had one-third fewer health inspectors than required under its “benchmark” agreement with federal OSHA.

Tennessee

  • The average penalty imposed by Tennessee OSHA (TOSHA) for “serious” violations is only $1,352, compared to $2,153 in federal OSHA jurisdictions and the $7,000 maximum penalty.
  • Even fines for repeat offenders are very low in Tennessee. While the average fine for a repeat violation in federal OSHA jurisdictions was $14,326, in Tennessee, it was a small fraction of that—only $3,439.
  • TOSHA categorizes a very high proportion of violations as “non-serious,” leading to far lower fines on employers.
  • TOSHA is very reluctant to classify violations as “willful,” indicating that an employer had knowledge of the hazardous conditions cited. Such violations can result in far higher penalties, with maximum fines increased by tenfold, up to $70,000. TOSHA cited only one single “willful” violation in all of FY12, out of nearly 7,000 violations cited.
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