Tag: Occupational Safety and Health Administration

Regulations Create Jobs? Yes, the Jobs of Regulators

James Gattuso of the Heritage Foundation applies Bastiat’s “broken windows” fallacy to the arguments of David Michaels, OSHA Administrator, to shattering effect. From “Jobs, Regulations and Broken Windows“:

[Michaels] cited OSHA’s recently withdrawn proposal to limit workplace noise. The standard was criticized for imposing excessive costs. But Michaels argued the requirements would be a boon to private enterprise. “[B]ecause OSHA has a weak noise standard…,” he explained, “U.S. employers have no incentive to buy modern, quieter machines, which means that U.S. manufacturers don’t build them, and there are few jobs in the United States for engineers who could design them.” Imposing mandates would presumably create those jobs, boosting the economy.

That would be a good thing if true. Think of how easy it would be for regulators to rev up the economy. Just place more burdens on businesses, and see the economy grow as they spend money to comply with them. That, however, is simply not the way the world works. Michaels’ argument is nonsense on stilts.

Frederic Bastiat, the 19th Century French economist, refuted the argument that breaking windows produced net economic benefits. Yes, glaziers did well in the repairs, but the work misallocated capital that could be better spent on more productive investments.

It’s not only regulators who base their arguments on jobs without the context of productivity or greater economic good, Gattuso notes.

[Some] have argued that pending FCC “net neutrality” rules would destroy jobs because the marketplace “losers” would be telephone and cable firms who employ large numbers of people, while the “winners” would be lean Internet content firms such as Google and Amazon.com, who have relatively small workforces. But such arguments completely miss the point. The problem with net neutrality rules has nothing to do with protecting fat telephone and cable payrolls. The problem is that, by interfering with innovation and investment, the recently-adopted rules will stymie growth of the Internet. That will probably mean fewer jobs for the economy as a whole – but certainly it would mean fewer benefits for society.

The goal should not be jobs, but wealth creation.

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The President’s Budget: Creating Jobs Through Increased Enforcement?

President Obama has made it very clear that he wishes to work with employers to help ensure they have an environment to creating jobs. We appreciate this commitment and look forward to see how his recent Executive Order on federal rulemaking is implemented. The Obama Administration has sent many signals that they’re going to be carefully reviewing regulations that may hinder job creation.

However, as analysis of the President’s budget continues it appears that the Administration is sending mixed signals. Specifically, the Department of Labor’s budget request does trim $1.1 billion dollars for FY 2012, it would still increase spending for agencies that regulate employers. Looking specifically at OSHA, there are increases for “safety and health standards” for the agency to develop new rules and spending on whistleblower programs. We should note that this request does slightly increase funding for compliance assistance programs, but the agency has proposed rules that would gut many employer outreach efforts like the on-site consultation program. A half a step forward, a full step back.

Looking beyond OSHA, the President’s budget would increase spending to “combat” employee misclassification. The Administration has often stated that they perceive a problem a widespread misclassification of employees as independent contractors by employers to skirt obligations associated with employees. The President’s request would increase spending for the Wage and Hour Division of the Department of Labor to beef up federal employees to investigate misclassification. This comes on the heels of the Department’s fall regulatory agenda that indicates that the Department is still in the process of developing “Right to Know” regulations that would likely impose a new burden on employers to perform extensive employee audits of each worker – independent contractor and employee alike.

Also troubling is the Department’s proposal to lure states into launching paid-leave programs. The Department is looking to increase spending to encourage states to start programs that would create new entitlements, which inevitably lead further funding down the road.

If the President is serious about assisting employers to create jobs, the Administration needs to do more than simply sign executive orders calling for a review of regulations; he needs to focus on supporting an environment that allows employers to create jobs.

Joe Trauger is the NAM’s vice president for human resources policy.

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Coalition for Workplace Safety Testifying on OSHA

The National Association of Manufacturers co-chairs the Coalition for Workplace Safety, so we pass on this from the Coalition’s website, “CWS Spokesman To Tell Congress of OSHA Priorities“:

From the House Education and Workforce Committee:

On Tuesday, February 15 at 10:00 a.m., the Workforce Protections Subcommittee, chaired by Rep. Tim Walberg (R-MI), will hold a hearing on “Investigating OSHA’s Regulatory Agenda and Its Impact on Job Creation” in room 2175 of the Rayburn House Office Building. Since 1970, the Occupational Safety and Health Administration has been charged with enforcing federal safety and health standards in America’s workplaces. With nearly 14 million individuals out of work, members of the committee will examine OSHA’s current policies and priorities and how they affect job growth.

Among those testifying is Stuart Spencer on behalf of the Coalition for Workplace Safety.

More information is available from the Committee’s website.

The detailed budget summary for OSHA’s FY12 budget is available from the Department of Labor here. The President’s budget requests $583.4 million for the sub-cabinet agency, up $24.8 million from current spending, about a 4.3 percent increase.

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OSHA Needs to Explain Its Unfounded Noise Proposal

OSHA formally announced in the Federal Register this morning that that the agency will be extending the comment period for their proposal to change noise abatement requirements. However, many on Capitol Hill are asking OSHA if the agency understands the impact that this proposal will have on manufacturers of all sizes.

From OSHA’s notice in the Federal Register:

Two commenters, the National Association of Manufacturers and the Coalition for Workplace Safety (CWS), representing employers who would be affected by the proposed interpretation, have requested an extension of 90 days to assess the operating changes that their members would be required to make to comply with the interpretation.

While this announcement makes the extension official we appreciate that OSHA has recognized that it would take much longer than then initially proposed 60 day window to accurately assess the impact of the agency’s proposal.

We say “proposal” and not “proposed rule” because the agency is attempting to make these changes outside of the formal rulemaking process. While OSHA officials are accepting comments to the regulatory docket the agency is not compelled to take stakeholder feedback into account. Manufacturers, particularly smaller sized manufacturers, will be impacted by these changes, which come at staggeringly high costs without any evidence that the current process of protecting employees is deficient.

David Michaels, the Assistant Secretary of Labor for OSHA, told The Hill newspaper that the agency is “sensitive to possible costs associated with improving worker protection”. Further he said:

Our common objective is to ensure that workers don’t lose their hearing without overly burdening employers. OSHA will take all stakeholder comments seriously and will fully consider impacts on business and workers before determining what final action, if any, we will take.

We hope OSHA does take these comments seriously and realize that the costs of making these changes far outweigh potential benefits (if any) that may result.

Yesterday Senators Olympia Snowe (R-ME) and Joe Lieberman (I-CT), who co-chair the Senate’s Task Force on Manufacturing, sent a bipartisan letter to Labor Secretary Hilda Solis asking for more information on why the proposal has been put forth. The Senators point to important data that shows that the number of hearing loss incidents in the workplace is quite low and is improving significantly.

OSHA does not appear to support this change with data or any suggestion that employees require this new level of protection. Indeed the most recent Bureau of Labor Statistics (BLS) data on hearing loss injuries shows that from 2004-2009, incidences of hearing loss injuries have decreased from just under 29,000 per year to 19,500 per year and the rate of injuries has gone from 3.2 per 10,000 employees down to 2.2

More importantly the Senators posed several important questions to the Secretary of Labor that we very much look forward getting answers to as well:

-Did OSHA consider alternative interpretations prior to deciding to publish the proposed interpretation in the Federal Register? If so, what were these alternatives?
-Did OSHA consider any unintended consequences the proposed interpretations could have on small businesses? How did the agency address these concerns during formulation of the proposed interpretation?
-Does OSHA have any quantitative data affirming the necessity to change this policy, given that numerous organizations have noted that the current policy is effective?

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Lots of Noise Around OSHA’s Reinterpretation of Noise Standards

Employers are becoming increasingly disturbed by the potential costs of complying with regulations coming from federal agencies in Washington, D.C. One recent item has been keeping employers awake at night is OSHA’s plan to re-interpret what’s required to protect employees from harmful levels of noise. OSHA’s proposal would not improve workplace safety but would place a huge new cost burden on employers.

The agency purports it wants to tweak an existing noise abatement standard, but in the process OSHA would reverse almost three decades of OSHA regulatory policy – a policy that’s worked quite effectively. Put simply the proposal would reinterpret the word “feasible” to mean “anything capable of being done” in the form of certain noise control efforts. The consequences are so dramatic, so costly, that the full federal rule-making process should be required. Instead OSHA is downplaying its significant by calling the proposal a “reinterpretation,” so will acknowledge cost concerns ONLY if the new requirements might put a company out of business. Is the threshold of closing down businesses going to be the new determining factor for federal regulations? We hope not.

OSHA has given the public a mere 60 days to comments on one of the most expansive proposals that the agency has crafted during this Administration, an unreasonably short period given the sweeping changes that are being sought. That’s why the National Association of Manufacturers and numerous other groups are requesting an extension to the comment deadline. Our request is available here, and the request from the Coalition for Workplace Safety is available here.

A few groups have already analyzed the impact of OSHA’s proposal. One such group, the Alaska Fire Service, highlighted some of the many flaws in a comment filed on the regulatory docket:

Interpreting “feasible” as only “capable of being done” would be an inappropropriate determining factor in enforcing aregulatory safety standard, especially this one. In our business of wildland firefighting using the above interpretation: it would be “feasible” to only fly our fire crews mid-way to a fire 200 miles away in a helicopter and then, to implement our administrative controls, land half way there & force them to hike the remaining 100 miles in the Alaska bush. Is it capable of being done? Absolutely. At the cost of potentially drowing in rivers, being attacked by bears & wolves, increasing the likelihood of slips/trips/falls, and taking an additional 8 days to reach the fire which has now grown by 5000%. Of course, 8 days would be over halfway of their maximium  14 day tour so once they arrived they have to turn around and start hiking back to base. Is this any way to implement a hearing standard?

To the Fire Service’s question we would respond a resounding “no.” Just because it may be “feasible” doesn’t necessarily mean that it should be done.

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Hope OSHA Listens to Employers on Its Noisome Noise Proposal

Employers now have access to affordable and extremely effective technology to protect employees from excessive workplace noise. But it’s JUST NOT ENOUGH, OSHA shouts, regulatorily.

As a Nixon-Peabody Alert puts it, “OSHA announces a radical new and enormously costly interpretation of occupational noise standards“:

With little fanfare, the federal Occupational Safety and Health Administration (“OSHA”) has quietly announced that it is considering a radical change to its interpretation of an employer’s obligations concerning employee exposure to occupational noise. The announcement may have been quiet, but the impacts will be loud. If adopted in their current form, the new obligations will be substantial and the potential cost to employers is likely to be immense.

The law firm is sending out warning to employers in light of the Oct. 19 Federal Register notice by OSHA, “Interpretation of OSHA’s Provisions for Feasible Administrative or Engineering Controls of Occupational Noise.”

The International Safety Equipment Association describes the proposal, “OSHA prepares to lower the boom on workplace noise“:

If you’re an employer with a noisy workplace, OSHA says you have to keep the sound level below a certain level, or provide your workers with PPE such as ear plugs or earmuffs. There is a condition in the regulations that says the administrative or engineering controls used to limit noise must be feasible, which OSHA has long interpreted as meaning less costly than an effective hearing conservation program using monitoring, testing, training and PPE. Now OSHA wants to revise that policy, interpreting feasible to mean “capable of being done” and setting a new threshold for affordability.

Dave Ippolito, a former OSHA compliance officer, commented in response to a blog post at the Center for Progressive Reform, supporters of the ever-expanding regulatory state. Ippolito knows what he’s talking about:

As an ex OSHA compliance officer, supervisor, and OSHA Area Director I will simply say that literal enforcement of this approach, without careful consideration could put many Americans out of work. (continue reading…)

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Musculoskeletal Definitions: Too Arbitrary, Ill-Defined

Since we’re giving the Associated Builders and Contractors accolades today, we also note ABC’s excellent statement on OSHA’s plans to add reporting requirements for musculoskeletal definitions just posted online. From “ABC Urges OSHA to Abandon Proposed Musculoskeletal Reporting Rule“:

ABC March 30 objected to an Occupational Safety and Health Administration (OSHA) proposed rule that would revise the OSHA Form 300 to include an additional reporting column for musculoskeletal disorders (MSD). The proposed rule would amend OSHA’s recordkeeping regulation, although OSHA claims it would not require employers to implement any new controls in the workplace.

In its comments, ABC expressed concern over the notice of proposed rulemaking (NPRM) largely due to the vague and subjective definition of what would constitute an MSD. The NPRM defines MSDs as “disorders for the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs, except those caused by slips, trips, falls, motor vehicle accidents, or other similar accidents.” ABC pointed out that the definition groups together a variety of disorders and symptoms that are not necessarily related. In addition, ABC noted that even the scientific community has been unable to settle on a reliable definition or cause of most MSDs, making OSHA’s definition seem even more arbitrary.

“In light of the inability to define, diagnose or determine the cause of MSDs with any degree of precision, the logical conclusion, mandated by the applicable Occupational Safety and Health Act criteria, is that OSHA must acknowledge the limitations it faces in drafting a workable MSD provision and ultimately abandon the NPRM,” ABC stated in its comments.

The Labor Policy Institute, an initiative of the National Association of Manufacturers, has a fact sheet on OSHA’s proposed MSD recordkeeping, which the NAM also sees as a precursor to a broad, new and troubling ergonomics standard.

The issue arose several times in an online chat that OSHA officials held Wednesday on the Department of Labor’s strategic plan. A transcript of the chat is here.

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More from OSHA Listens

The NAM’s Keith Smith spoke Thursday at the “OSHA Listens” session, a daylong public event to gather comments  from people, groups and companies affected by federal safety and health regulations. The Occupational Safety and Health Administration has also posted submitted comments.

In December, OHSA released its regulatory agenda for the first half of 2010. Here’s a summary sheet.

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Administration Setting Stage for Ergonomics Revival

From The Hunton & Williams LLP Labor Policy Task Force’s blog, “Telling Signs That Ergonomic Regulations Are Making A Comeback“:

The Obama Administration recently proposed requirements to ensure that U.S. companies keep more extensive records of repetitive stress and other types of workplace injuries.  This is one of several signs that employers will face more regulation related to “ergonomics,” or the design and functioning of work spaces, equipment, and tasks in such a manner as to avoid such injuries.

The Occupational Safety and Health Administration (“OSHA” or the “Agency”) recently announced its intent to reinstate the “musculoskeletal disorder” column on its injury and illness 300 Form.  The Agency is also developing a proposed rule to add a definition of musculoskeletal disorders to the Occupational Safety and Health Act (the “Act”).  A notice of the proposed rule-making and opportunity for public comment will be issued in January 2010.

Yes, we see the same signs.

The post notes the OSHA had previously evaluated ergonomic issues by using the General Duty Clause of the Occupational Safety and Health Act. In 2001, OSHA eliminated the musculoskeletal disorder checkbox on the 300 Form, the result of a 2001 settlement agreement with the NAM and others. For a summary of that agreement in National Association of Manufacturers v. Chao, see the NAM’s Legal Beagle entry.

Business Insurance covered the ergonomics issue in a December report, “Employers wary of changes in approach, focus at OSHA.” See also Media Health Leaders, “OSHA Protections May Include Airborne Infectious Disease, Safe Patient Handling.”

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The First Speech by OSHA’s New Administrator, David Michaels

Fresh from his Senate confirmation, David Michaels, the new Assistant Secretary of Labor for Occupational Safety and Health, made his maiden speech as OSHA Administrator Wednesday. He spoke at a conference sponsored by the National Institutes of Occupational Safety and Health, an address entitled, “Making Green Jobs Safe: Integrating Occupational Safety & Health into Green and Sustainability.” Excerpt:

I think it’s very fitting and proper that my first speech as Assistant Secretary should address the issue of green jobs – what green jobs mean for the earth, for our economy and for American workers.

We’re all aware of the job opportunities that green jobs offer, and in the present economy, new technologies with the potential of new jobs are especially welcome.

Secretary of Labor Hilda Solis recently announced nearly $55 million in green job grants, authorized by the American Recovery and Reinvestment Act of 2009. These grants will support job training and labor market information programs to help workers, many in underserved communities, find jobs in expanding green industries and related occupations.

Is it fitting, really, that the first comments by a powerful federal regulator single out one segment of the economy for implicitly favored treatment? No one really knows what “green jobs” or “green industries” are; subjective definitions and standards are enemies of consistent regulation — and the rule of law, for that matter.

To be fair, the occasion was a forum dedicated to greenness, so comments to the topic were to be expected. But when speaking about the broader economy, Michaels offers even more of this subjectivity and invidiousness. This is a striking statement, coming as it does from a powerful regulatory and enforcement official who should embrace fairness and objectivity.

Where, and when possible, OSHA must move ahead on rulemaking for urgently needed standards – and to create good standards, we’ll need the input of scientists and engineers, academics, students and workers. We’ll also need allies in the progressive business community who will say “yes” to sensible changes and participate in the rulemaking process with constructive comments and insight.

Those comments divide employers into good business and bad business, progressives and reactionaries, those to be rewarded, those to be punished. In other words, “If you go along with us, support our proposals with our ‘sensible changes’ you’re progressive and good, and we’ll get along just fine. If you disagree with our proposals, object to our ‘sensible changes,” well, then, we won’t pay any attention to you. If you’re lucky. If you’re not, we might pay a lot of attention to you, and you won’t like it a bit.”

We would have expected a top official in the jobs-minded Obama Administration and Department of Labor to begin his tenure with speech that says, “We are going to work with everyone to create good jobs in a safe and healthy workplace.” Instead, we get a speech that told employers to fall in line with whatever OSHA says or pay the consequences.

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