Occupational Safety & Health: Options for Improving Safety and Health in the Workplace

Published by the Government Accountability Office on 1990-08-24.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

--*__. __..-.----   ..-
Arl#~st, 1!MI
                               OCCUPATIONAL    --
                               SAFETY & HEALTH
                               Options for Improving
                               Safety and Health in
                               the Workplace

                          m--Not                to be released outside the
                          General Accounting Office unless specifically
                          approved by the Office of Congressional
United States
General Accounting Office
Washington, D.C. 20648

Human Resources Division


August 24,199O
The Honorable Joseph Gaydos
Chairman, Subcommittee on Health
  and Safety
Committee on Education and Labor
House of Representatives

The Honorable Paul Henry
Ranking Minority Member
Subcommittee qn Health and Safety
Committee on Education and Labor
House of Representatives

Fatality rates today reflect a safer workplace than when the Occupa-
tional Safety and Health Act was passed in 1970. However, on average,
at least 13 U.S. workers die each working day from injuries in the work-
place, and about another 11,000 are injured seriously enough to lose
work time or to experience restricted work activity. Work-related illness
is also a substantial problem.

You asked GAO to identify alternative policies or procedures that might
better accomplish the act’s goal of providing a workplace that is free
from safety and health hazards. This report identifies and analyzes
options that the Congress and the Occupational Safety and Health
Administration (OSHA) could consider for improving the workplace.

To respond to your request, we examined OSHA'S current regulatory
strategy. We compared OSHA'S approach with that of state-operated
safety and health programs, as well as the Labor Department’s Mine
Safety and Health Administration, which protects the nation’s miners;
we surveyed OSHA inspectors to obtain their views on OSHA’Sprograms.
We also interviewed federal and state agency officials, as well as safety
and health experts from labor, management, and academia. Finally, we
extensively reviewed the published literature on this topic.

OSHA'S regulatory strategy emphasizes inspecting worksites for compli-
ance with safety and health standards. In fiscal year 1989, OSHA spent
about three-quarters of its $248 million appropriation on standard set-
ting and federal and state enforcement activities.’ OSHA also encourages

‘OSHA funds up to half the cost of 21 state-operated safety and health programs that it approves
and monitors.

Page 1                              GAO/HRD-99-66BR      Occupational   Safety and Health Options

                          employers and workers to improve workplace safety and health condi-
                          tions and provides education and training to help them do so. For
                          example, inspectors educate employers and workers while doing inspec-
                          tions, and some OSHA standards require employers to provide training to

                          We identified the following problems with improving safety and health
Problems Identified       in the workplace, given the current legislation, resources, and OSHA

                      . OSHA has about 800 inspectors (plus 300 supervisors and trainees) to
                        enforce safety and health standards for almost 3.6 million employers
                        with about 66 million workers.2 Therefore, even employers in high-
                        hazard, targeted industries are rarely inspected.
                      . Civil and criminal sanctions used by OSHA provide limited deterrence to
                        employer noncompliance. For example, in fiscal year 1988, the average
                        assessed penalty for a serious violation was $261.
                      l Some employers have little incentive to “abate” (eliminate) promptly
                        the hazards OSHA inspectors identify. Employers can delay abatement
                        (1) while OSHAobtains a court order to get imminent dangers corrected
                        or (2) by contesting an OSHAcitation. In addition, OSHA usually does few
                        follow-up inspections to determine if employers have complied with
                        their agreements to abate hazards. Instead, 06~~ relies on employers’
                        verification of abatement, without requiring any evidence that it has
                        taken place.
                      l Safety and health standards fail to cover existing workplace hazards or
                        keep pace with new ones. For example, estimates of the number of new
                        chemical products manufacturers annually introduce into the workplace
                        range from 1,000 to 3,000-far more than OSHA can regulate with its
                        current approach to standard setting.
                      . Many employers and workers lack information about workplace
                        hazards. Workers are minimally involved in improving workplace safety
                        and health, and employers often limit their efforts to compliance with
                        standards rather than active attempts to prevent hazards.

                          ‘State-operated programs have enforcement responsibility for an additional 2.3 million employers
                          with about 34 million workers.

                          Page 2                               GAO/HRD-9068BR      Occupational   Safety and Health   Options


              The options we identify in this report might, through either legislative
Options for   or administrative changes, strengthen the enforcement of standards and
Improvement   the roles of employers and workers (see table 1). Each option has advan-
              tages and disadvantages, which we discuss, but we did not analyze the
              cost-effectiveness of the options. The major factors we considered in
              selecting options were (1) frequent identification by safety and health
              experts or in the literature and (2) the extent of evidence we were able
              to obtain about their feasibility. Using these factors, we excluded from
              discussion in this report several options we initially considered,
              including those primarily enhancing existing economic incentives, such
              as workers’ compensation, tort liability, and taxes based on work-
              related injuries and illnesses.

              The options to strengthen OSHA'S enforcement strategy would do so by
              (1) enhancing standard setting, (2) increasing deterrence, and
              (3) improving hazard-abatement procedures.

              Delays in standard setting might be reduced by legislative changes, such
              as allowing OSHA to use a streamlined rulemaking process to revise the
              start-up standards set when OSHA was first created. This could be done
              by using national consensus standards or established federal stan-
              dards-as the act allowed for the start-up standards, Delays might also
              be reduced by requiring (1) manufacturers to test likely hazardous sub-
              stances and (2) OSHA to respond to standard-setting recommendations
              from groups other than OSHA.

              Deterrence might be enhanced by increasing the probability of inspec-
              tion of hazardous worksites and imposing stricter penalties for viola-
              tions. Increasing this probability might be accomplished by (1) obtaining
              better information to target inspections and (2) reducing the amount of
              time inspectors spend on inspections of less hazardous worksites.
              Stricter penalties could come from higher civil penalties, expansion and
              use of criminal sanctions, or loss of the right to participate in federal
              contract competition.

              Abatement options would require employers to (1) abate the identified
              hazards more quickly-both    in imminent danger situations and when
              employers are contesting the citation-and  (2) give OSHA evidence that
              employers have complied with their agreements to abate hazards.

              Page 3                     GAO/HRD-9066BR   Occupational   Safety   and Health Options

                                          Options to strengthen the involvement of employers and workers in
                                          improving working conditions include (1) strengthening OSHA’Seduca-
                                          tion and training efforts, (2) requiring worksite safety and health pro-
                                          grams and committees, and (3) increasing worker participation in the
                                          inspection process, from the initial inspection through confirming abate-
                                          ment (see table 1).

Table 1: Leglslatlve and Administrative
Options Cited That Might Improve          Option                                              Legislative        Administrative        Page
Protection of Worker Safety and Health    Strengthen enforcement
                                          Standard setting
                                            Establish an expedited standard-setting
                                               process                                        X                                          24
                                            Give OSHA authority to require substance
                                               testing by manufacturers                       X                                          26
                                            Require OSHA to respond to standard-setting
                                               recommendations                                X                                          27
                                          Deterrence                                                                              --
                                          - Obtain better data to target inspections                             X                       32
                                            Inspect more of the hazardous worksites           X                  X                       34
                                            Increase civil penalties paid                     X                  X                       35
                                            Expand and use criminal sanctions                 X                  X                       37
                                            Deny federal contracts to noncomplying
                                               employers                                      X                  X                       38
                                          Hazard abatement
                                            Give inspectors shutdown authority for
                                               imminent dangers                               X                                          40
                                            Protect workers while employers are
                                               contesting citations                           X                                          41
                                            Require proof of hazard abatement                                    X                       42
                                          Strengthen roles of employers and workers
                                          Education and training
                                            Shift emphasis to programs that train more
                                               people                                                            X                       45
                                          Employer and worker involvement
                                            Require safety and health programs                                   X                       46
                                            Require labor-management safety and health
                                               committees                                                        X                       48
                                            Increase workers’ participation in OSHA
                                               insoection orocess                             X                  X                       50

                                          Section 1 includes background material; section 2, an overview of OSHA'S
                                          regulatory strategy; section 3, the options to strengthen enforcement;
                                          and section 4, the options to improve the roles of employers and

                                          Page 4                           GAO/IiRD-90-66BR       Occupational   Safety and Health Options

                  Labor said that GAO has suggested a number of interesting administra-
Agency Comments   tive and legislative solutions to the problems outlined in this report.
                  Labor did not comment on the specific options identified, but noted that
                  the administrative options will be seriously considered. Labor also sug-
                  gested some clarifications concerning CBHA’S(1) regulatory strategy,
                  (2) efforts to increase the deterrent impact of its inspections, and
                  (3) efforts to seek voluntary cooperation between employers and
                  workers to improve workplace safety and health. We have made the
                  necessary changes to reflect Labor’s concerns. Labor’s letter is shown in
                  appendix IV.

                  As you requested, no further distribution of this report will be made for
                  14 days or until you release it. At that time, we will send copies to the
                  Secretary of Labor and other interested parties. Should you have any
                  questions or wish to discuss the information provided, please call me on
                  (202) 275-1793. Other major contributors to this report are listed in
                  appendix V.

                  Franklin Frazier
                  Director, Education and
                    Employment Issues

                  Page 6                     GAO/IiRD8O86BR   Occupational   Safety and Health Options

Letter                                                                                                       1

Section 1                                                                                                    8
Introduction           Background                                                                        8
                       Trends in Work-Related Injuries and Illnesses                                    14
                       Objective, Scope, and Methodology                                                15

Section 2                                                                                               17
OSHA’s Regulatory      Enforcement Activities
                       Roles of Employers and Workers
Strategy               Data Collection and Evaluation                                                   20

Section 3                                                                                               21
Strengthening          Enhance Standard Setting
                       Increase Deterrence
Enforcement            Improve Hazard-Abatement Procedures                                              39

Section 4                                                                                               43
Strengthening the      Problems With Current Roles of Employers and Workers
                       Options to Strengthen the Roles of Employers and
Roles of Employers          Workers
and Workers
Appendixes             Appendix   I: Methodology                                                        54
                       Appendix   II: Enforcement Procedures                                            58
                       Appendix   III: Roles of Employers and Workers                                   64
                       Appendix   IV: Comments From the Department of Labor                             69
                       Appendix   V: Major Contributors to This Report                                  74

Related GAO Products                                                                                    76

Tables                 Table 1: Legislative and Administrative Options Cited                                 4
                           That Might Improve Protection of Worker Safety and
                       Table I. 1: Total Inspectors and Total Sampled by Type                           56
                       Table 1.2: Respondents Doing (or Supervising) Inspections                        66
                           by Sampled Group
                       Table 1.3: Universe to Which Questionnaire Results Can                           67
                           Be Projected: Respondent Universe Doing Inspections

                       Page 6                    GAO/HRLNO-60BR   Occupational   Safety and Health Options

Figures   Figure 1.1: The Occupational Safety and Health Act of                                     9
          Figure 1.2: Administrative Structure                                                 10
          Figure 1.3: OSHA Budget Authorizations (197 l-89)                                    11
          Figure 1.4: NIOSH Budget Authorizations (1971-89)                                    13
          Figure 2.1: OSHA Budget by Function (Fiscal Year 1989)                               18
          Figure 3.1: OSHA 6(B) Standard-Setting Process                                       22
          Figure 3.2: Options to Reduce Delay in Standard Setting                              24
          Figure 3.3: Options to Increase Deterrence                                           31
          Figure 3.4: Options to Improve Hazard-Abatement                                      40
          Figure 4.1: Options to Strengthen Roles of Employers and                             45
          Figure II. 1: OSHA Inspection and Citation Resolution                                60


          ACGIH      American Conference of Governmental Industrial Hygienists
          BLS        Bureau of Labor Statistics
          EPA        Environmental Protection Agency
          LWDI       lost workday injury
          MSDS       material safety data sheet
          MSHA       Mine Safety and Health Administration
          NIOSH      National Institute for Occupational Safety and Health
          OSHA       Occupational Safety and Health Administration
          OSHRC      Occupational Safety and Health Review Commission

          Page 7                     GAO/HRD4086BR   Occupational   Safety   and Health   Options
Section 1


               The Congress enacted the Occupational Safety and Health Act of 1970
Background     on December 29, 1970, with the sweeping goal of “assuring so far as
               possible every working man and woman in the Nation safe and healthful
               working conditions.” The act marked the first comprehensive, nation-
               wide regulatory program to prevent workplace injuries and illnesses.

               Earlier acts, both federal and state, had focused primarily on compensa-
               tion to workers for workplace injuries. However, it had become apparent
               that workers’ compensation, tort liability, and the tax system had failed
               to provide adequate incentives for employers to “abate” (eliminate)
               workplace hazards voluntarily. A 1970 Senate report ranked the
               problem of ensuring safe and healthful worksites for workers as of
               equal importance with any that engaged the national attention at that
               time.’ In 1968, the Secretary of Labor testified that yearly, because of
               safety and health problems at the workplace, about 14,600 workers
               would be killed,” over 2 million disabled, and over 7 million injured. In
               1970, he also testified that the number of disabling injuries per million
               hours worked was 20 percent higher in 1970 than in 195S3

               The act requires employers in the private sector to (1) furnish employ-
               ment and a place of employment that are free from recognized hazards
               that cause or are likely to cause serious physical harm or death to
               workers and (2) comply with occupational safety and health standards.
               The act also requires each worker to comply with occupational safety
               and health standards, as well as all rules, regulations, and orders issued
               under the act that are applicable to the worker’s own action and

               As shown in figure 1.1, the act covers about 88.7 million workers and
               about 5.9 million employers. Only three groups were excluded from
               direct coverage: the self-employed, those employed by state and local
               governments,4 and those covered under other federal safety and health
               laws. The last group now includes miners, as well as airline and nuclear
               facilities workers. Since 1976, an appropriations rider has exempted cer-
               tain small farms with 10 or fewer workers. Each federal agency must

               ‘S. Rept. 1282,91st Cong., 2d Sess.(1970).

               “Hearings on S.2864 before the Subcommittee on Labor, Senate Committee on Labor and Public Wel-
               fare, 90th Gong., 2d Sess.69,71-73 (1968).
               “S. Rept. 1282,91st Gong., 2d Sess.(1970).

               *State and local government employees are, in some states, covered by state-operated safety and
               health programs approved by OSHA.

               Page 6                               GAO/HRD-9086BR      Occupational   Safety and Health Options

Figure 1.1

       GAQ The Occupational Safety and
           Health Act of 1970
             Purpose:              To ensure safe and healthful
                                   work conditions
             Coverage:             5.9 million employers
                                   88.7 million workers
             Excluded:             Self-employed
                                   State and local government
                                   Workers covered by other

                         establish and maintain an effective and comprehensive safety and
                         health program for the protection of federal workers; the program must
                         be consistent with OSHA standards for private sector employers.

                         Page 9                    GAO/HRD-9M0BR   Occupational   Safety   and Health   Options
                           Section 1

Fiaure 1.2

       GAQ Administrative Structure

             l   OSHA        Set and enforce standards
                             Provide education and training
                             Monitor state programs

             l   BLS        Collect injury and illness data
             NOSH            Conduct research and
                             disseminate findings
             l   OSHRC       Decide on contested citations

Administrative Structure   The act separated enforcement-related activities on occupational safety
                           and health from research activities. The Department of Labor is to carry
                           out enforcement activities through the Occupational Safety and Health
                           Administration (0s~~) and the Bureau of Labor Statistics (BIS); the
                           Department of Health and Human Services is to carry out research
                           activities through the National Institute for Occupational Safety and
                           Health (NIOSH). In addition, the act established the Occupational Safety
                           and Health Review Commission (OSHRC). (See fig. 1.2.)

                           Page 10                   GAO/HRD-BOBBBR   Occupational   Safety   and Health   Options
                                                         Sectton 1

Figure 1.3

       GAQ OSHA Budget
           Authorizations (1971 - 89)
             a00     oolhm        In Ylllbrr



               0            .-                                                             _-         ,.-         .__         ,,,_--
               lwl          lwa          rwa       lW4   1070   1070    ton   1070   lwo        ,wo         ,o*         ,mz            190   lou      1olM   1m   low   low   lilm

                     -              AamDonm
                     -1.1           4d~mrwkllmlm

                                                         Note: Inflation adjustments used the GNP deflator for total federal expenditures on goods and services
                                                         with 1989 as the base year. Thus inflation adjustment figures are in 1989 dollars.

Occupational Safety and                                  The Secretary of Labor established OSHAto administer the act. OSHA sets
Health Administration                                    mandatory safety and health standards; through its regional, area, and
                                                         district offices, CBHAinspects private sector worksites, proposes penal-
                                                         ties, and prescribes abatement dates for employers found violating the
                                                         standards or failing to meet their “general duty” to provide a workplace
                                                         that is free from safety and health hazards. In addition, OSHAprovides
                                                         education to workers, employers, and the public, mostly through grant

                                                         Page 11                                            GAO/HRD-90-66BR                        Occupational   Safety and Health   Options
                             Section 1

                             The act authorizes the states to develop and operate their own safety
                             and health programs; 21 states and 2 territories do so.” OSHA approves,
                             monitors, and evaluates these state programs. It may fund up to 60 per-
                             cent of the cost of operating these programs.

                             OSHA'S budget authorization   in actual and constant (inflation-adjusted)
                             dollars for fiscal years 1971 through 1989 is shown in figure 1.3. In
                             fiscal year 1989, OGHA’Sbudget authorization was $248 million.
                             Although OSHA’Sfunding has increased since 1971, funding, adjusted for
                             inflation, has remained steady since 1982, decreasing about 10 percent
                             since its peak in 1979. Meanwhile, data provided to us by OSHAshowed
                             that the number of employers covered by OSHA increased over 30 per-
                             cent between 197’9 and 1989.

Bureau of Labor Statistics   BE! is responsible for collecting occupational safety and health data. It
                             issues guidelines to employers, defining what injuries and illnesses to
                             record and what information to record about them. In addition, BI.S (1)
                             surveys some 280,000 employers annually to obtain occupational injury
                             and illness data and (2) provides the statistical results to OSHAand
                             others. For fiscal year 1989, about $20 million of OSHA'S $248 million
                             budget went to BIS.

National Institute for       The act created NIOSH within the Department of Health and Human Ser-
Occupational Safety and      vices. NIOSH is responsible for conducting research and analyzing the
U,,ltL                       results so as to prevent illness and control hazards in the workplace.
nttalbll                     NIOSH'S mandate includes four basic tasks: respond to requests for inves-
                             tigations of workplace hazards, conduct research on ways to control or
                             prevent work-related health and safety problems, recommend to OSHA
                             appropriate regulatory actions (“standards”) based on scientific find-
                             ings, and train occupational safety and health professionals to carry out
                             the mandates of the act. NIOSH also does work for other agencies,
                             including the Mine Safety and Health Administration (MSHA) and the
                             Environmental Protection Agency (EPA).

                             “These programs are required to provide enforcement in the public sector (state and local government
                             employees) as well as the private sector. Two additional state-operated programs provide enforce-
                             ment coverage in the public sector only, with OSHA responsible for private sector enforcement.

                             Page 12                              GAO/HRIMM6BR        Occupational   Safety and Health Options
                                              section 1

Figure 1.4

       GAQ NIOSH Budget
           Authorizations (1971 - 89)





                      .-. -. .
               l!nl     WI2      lun   1914   lo70   1074    1977   1074   1070    low   lml   1912   lma   1084   loo8   lea    lo@7    loo0   lmo
               Rmml Yrn

                                              Note: Inflation adjustments used the GNP deflator for total federal expenditures on goods and services
                                              with 1989 as the base year. Thus inflation adjustment figures are in 1989 dollars.

                                              NIOSH'S budget authorization  in actual and constant dollars for fiscal
                                              years 1971 through 1989 is shown in figure 1.4. For 1987-89, NIOSH'S
                                              budget authorization had been about $70 million annually. Like those of
                                              OSHA, NIOSH'S budget authorizations adjusted for inflation have remained
                                              steady since 1982. However, the 38-percent decrease, since its peak year
                                              of funding in 1980, has been greater than OSHA’Sdecrease. NIOSH'S
                                              funding level is lower now, in real terms, than in 1972.

                                              Page 13                                    GAO/HRD-90-06BR       Occupational     Safety   and Health Options

                           Section 1

Occupational Safety and    Employers may appeal a citation or proposed penalty to OSHRC,which
Health Review              has three members appointed by the President, with the advice and con-
                           sent of the Senate, for staggered terms of 6 years. OSHRCemploys admin-
Commission                 istrative law judges to rule on contested cases. On the basis of evidence
                           provided at hearings, the judges decide whether to affirm, “vacate”
                           (annul), or modify OWA’Scitation and proposed penalties. After the deci-
                           sion, any party can petition OSHRCto review the decision of the adminis-
                           trative law judges.

Legislation Has Not Been   Except for a minor technical change, the act has not been amended.
Substantially Amended      However, the Congress has enacted various appropriations riders, gen-
                           erally limiting the worksites at which OSHA could enforce the act’s provi-
                           sions. Six appropriations riders were in effect in fiscal year 1989. For
                           example, OSHAcannot use appropriations to (1) apply the act’s provi-
                           sions to farms that have 10 or fewer workers and do not maintain a
                           temporary labor camp or (2) schedule routine safety inspections of cer-
                           tain employers with 10 or fewer workers.

                           Occupational injury data suggest that workplace fatalities have
Trends in Work-            decreased since implementation of the act, even though employment has
Related Injuries and       substantially increased. Estimates differ, however, on the number of
Illnesses                  fatalities. For example, BE3 reported that in 1988 there were 3,300 fatal-
                           ities-down     from 4,970 in 1974. In contrast, the National Safety Council
                           reported 10,600 fatalities for 1988-down from 13,800 in 1970. One
                           reason for the difference is that BI.23,in its calculations, only includes
                           fatalities in worksites with 11 or more workers and excludes public
                           sector employers and the self-employed. Using the BIS estimates as a
                           lower bound, we estimate that for employers with 11 or more workers,
                           there were at least 13 workplace injury fatalities for each working day
                           in 1988.

                           No reliable data are available about trends in fatalities because of work-
                           related illness. According to a 1986 Office of Technology Assessment
                           report,” the most commonly quoted annual estimate for workplace
                           deaths because of illness is 100,000. However, according to the report,
                           others have cited estimates ranging from 10,000 to 210,000 deaths.
                           More accurate estimates are difficult to obtain for several reasons. First,
                           there is a general lack of information on both past and current worker

                           “Preventing Illness and Injury in the Workplace, U.S. Congress, Office of Technology Assessment,
                           OTA-H-266 (Washington, DC., Apr. 1986).

                           Page 14                              GAO/HRlMO-MBR       Occupational   Safety   and Health   Option8
                       Scctlon 1

                       exposures. Second, the deleterious effects of workplace exposures are
                       not always known. Finally, multiple factors may exist that make it
                       impossible to assign a single “cause” to a disease.

                       Although fatalities because of workplace injuries have decreased, the
                       number of workdays lost because of injuries-a measure of injury
                       severity-has significantly increased. The average number of lost
                       workdays per 100 full-time workers rose from 64.6 in 1974 to 76.1 in
                       1988. In 1988, about 11,000 workers were injured seriously enough each
                       day to lose work time or to be put on restricted work activities. A total
                       of 66.9 million workdays were lost as a result of work-related injury or
                       illness in 1988.

                       OGHA’Simpact on injury and illness rates is largely unknown. Injury and
                       illness rates are affected by a number of factors. These include the
                       effects of the business cycle; various changes in the administration of
                       workers’ compensation; other socioeconomic factors, such as a shift
                       from a manufacturing (high-risk) to a service (low-risk) economy; and
                       OSHA. The Office of Technology Assessment report concluded

                       “There is a general belief that the presence of OSHA has increased manager and
                       worker awareness of occupational health and safety. This increased attention has
                       also created a need for health and safety professionals and probably increased their
                       role in company decisionmaking. The presence of a Federal regulatory agency may
                       lead employers to anticipate potential health and safety problems and solve them
                       before regulatory action becomes necessary. The OSH Act also created new rights
                       for worker information and participation concerning health and safety.“7

                       The Chairman and the Ranking Minority Member of the Subcommittee
Objective, Scope,and   on Health and Safety, House Committee on Education and Labor, asked
Methodology            GAO to conduct a broad review that would identify ways in which
                       worker safety and health might be better ensured in this country. The
                       request encompassed administrative changes that could be made at
                       OSHA, as well as possible changes to the legislation.

                       We collected information on how federal programs protect workers from
                       occupational safety and health hazards, the perceived problems with
                       such approaches, and options for improvement, The areas we examined

                       7PreventingIllness and Injury in the Workplace,p. 264.

                       Page 16                             GAO/HRD-9086BR       Occupational   Safety   and Health   Options

Section 1

were (1) setting and enforcing safety and health standards, (2) pro-
viding education and training, (3) collecting injury and illness data,
(4) evaluating program effectiveness, and (6) conducting safety and
health research. In our review, we considered the roles of administrative
agencies, employers, and workers.

We collected information through (1) interviews with federal and state
program administrators as well as safety and health experts from labor,
management, and academia; (2) a mail questionnaire to a random
sample of OSHAsafety and health compliance officers and to all supervi-
sors;” (3) a literature review; (4) agency procedures and performance
data, where applicable; and (6) recent legislative initiatives to improve
worker safety and health introduced in the 99th, lOOth, and 1Olst

We also identified different and additional program elements adminis-
tered by states with OSHA-approved state programs and MSHA.For three
state programs, we obtained performance data, when available, on
approaches that OSHAdid not use or that were different from the federal

We did our review between July 1988 and October 1989. In September
1989, we briefed OSHA officials about the problems we identified con-
cerning the OSHA program and the options contained in this report.

The data (inspection and penalty statistics) we obtained from OSHA’S
management information system are unverified, except to the extent
that we made consistency checks and received assurances about validity
of data from OSHA officials. In all other aspects, our work was carried
out in accordance with generally accepted government auditing

Further detail on the methodology we used is provided in appendix I.

“In the report, we use the term inspectors to refer to the combination of compliance officers and
supervisors whose responses we describe.

Page 16                               GAO/HRDM86BR         Occupational   Safety   and Health   Options
Section 2

i>isHA’sRegulalmy Strakgy

              OSHA has broad discretion to decide which strategy or strategies to
              employ and the level of resources to allocate to its various programs.
              Nevertheless, the act places emphasis on setting and enforcing stan-
              dards as a means to bring about a workplace free from safety and health
              hazards. The act also provides for other CBHAand private activities.
              These activities included agency education and training designed to
              acquaint the public with (1) workplace hazards, (2) means of abatement,
              and (3) voluntary efforts-by   individuals, groups, and the private
              sector-to reduce injury and illness in the workplace.

              OSHA defines its strategy as largely relying on voluntary compliance by
              employers and workers. OSHA noted that, ideally, enforcement actions,
              with appropriate citations and penalties, should be necessary only when
              employers fail-for whatever reason -to consider safety and health as
              an integral part of their responsibilities to workers. Consequently, OSHA
              combines enforcement with educational and assistance efforts. The
              agency promotes training and education through formal training and
              assistance programs, training requirements in many OSHAstandards, and
              other agency activities. For example, inspectors are expected to educate
              employers and workers as part of their inspection activities.

              OGHA'S allocation of resources to implement its strategy is shown in
              figure 2.1. Of the $248 million OSHAbudgeted in fiscal year 1989, about
              47 percent went to federal enforcement activities; another 18 percent
              went to state enforcement activities;’ and about 3 percent went to stan-
              dard setting. Compliance assistance-which     includes education,
              training, and consultation-was    the other major area, making up about
              14 percent of the budget,

              '0SHA funds upto half the cost of state-operated safety and health programs.

              Page   17                           GAO/HRD-IH)sBBR Occupational      Safety   and Health   Options
                      Section 2
                      OSHA’S Regnlatory     strategy

Figure 2.1

       GAQ OSHA Budget by
           Function (Fiscal Year 1989)

                                            Program Admlnisfrafion

                                            Safety and Health standard Setting
                                            Sfafe Enforcement Adivitiia

                  I                         Federal Enforcement Adivifier,

                      Note: Technical support activities support both standard setting and enforcement   activities.

                      OSHA'S enforcement strategy relies on inspecting worksites; citing
Enforcement           employers for noncompliance with OSHAstandards and the act’s general
Activities            duty clause, which requires employers to provide each employee with
                      employment and a workplace that is free from recognized hazards that
                      cause or are likely to cause serious physical harm or death; and veri-
                      fying that employers have abated hazardous conditions. This strategy is
                      characterized by inspection of high-hazard industries; response to
                      formal worker complaints; pursuit of civil penalties; the reduction of
                      fines for prompt abatement; and reliance on employers’ assurance that

                      Page 18                                 GAO/~9086BR        Occupational    Safety and Health Options

                     abatement took place. (These procedures are described in more detail in
                     app. II.)

                     OGHA'S enforcement procedures are intended to bring about safe and
                     healthful working conditions in two significant ways. First, OSHA'S
                     unannounced workplace inspections and fines are intended to provide
                     an incentive for employers to correct hazards before being inspected.
                     Second, OSHAtries to get employers to abate hazards that have been
                     identified through inspections. The agency issues abatement orders, con-
                     ducts follow-up inspections, and imposes daily penalties for failure to

                     In setting the standards to be enforced, 0~~‘s current standard-setting
                     strategy emphasizes setting performance-based and generic standards.
                     Performance-based standards regulate end results rather than describe
                     physical characteristics needed to meet a standard. For example, a
                     performance-based standard would specify that a ladder should support
                     a certain amount of weight rather than specifying the material of which
                     it should be made. Generic standards regulate multiple problems in
                     single industries or regulate work practices and procedures affecting
                     many industries, rather than addressing only a single hazard. The
                     hazard communication standard is an example of a generic standard
                     providing information to employers and workers on hazardous

                     The Occupational Safety and Health Act contains roles for both
Roles of Employers   employers and workers. Both are expected to be knowledgeable about
and Workers          OSHA standards and regulations so that hazardous workplace conditions
                     are identified and corrected. Employers are also expected to provide a
                     workplace that is free from safety and health hazards; workers are
                     expected to comply with safety and health procedures to protect them-
                     selves and other workers. Workers may also report to OSHA any unsafe
                     and hazardous work practices.

                     OGHA'Sprimary way of helping employers and workers carry out these
                     roles is through education and training, which is provided in two ways:
                     (1) agency-funded activities and (2) employer-funded activities (see app.
                     III). Agency-funded training activities include workplace consultation
                     visits at the request of employers, grants to worker and employer
                     associations for safety and health training, and such training at the OSHA

                     Page 19                      GAO/IUUMMMBR   Occupational   Safety   and Health   Options
                      Section 2
                      OSHA’S Regnlatmy   strategy

                      Training Institute. In addition, more than 100 OSHAstandards and guide-
                      lines mandate or recommend minimum levels of training employers
                      should provide.

                               overall strategy also includes acquiring an information base with
Data Collection and   OGHA’S
                      both (1) data on work-related injuries and illnesses and (2) evaluative
Evaluation            information on how well OSHA policies, procedures, and programs are
                      functioning. The importance of injury and illness data was emphasized
                      by the act’s requiring that (1) employers record injury and illness infor-
                      mation and (2) the Department of Labor establish a system to collect
                      such data. Labor’s strategy for obtaining injury and illness data is to
                      (1) rely primarily on survey data collected by BLS and (2) supplement
                      these data with other data, such as the results of NIOSH’S monitoring
                      activities. OSHA has an evaluation system that is intended to help it mon-
                      itor-through     a combination of internal studies and studies obtained
                      from outside sources under contracts-the        effectiveness of its various
                      programs and policies.

                      Although we examined the problems and options available for strength-
                      ening data collection and program evaluation, the only such option we
                      present in this report is strengthening inspection targeting by obtaining
                      better injury and illness data (option 4, discussed in sec. 3). ON-IA and
                      BLS, recognizing their data problems, are already exploring ways to
                      make other improvements in data collection, for example, expanding the
                      injury and illness data employers will record and report. Alternative
                      approaches were pilot tested in fiscal year 1989; BIS will start using the
                      approach selected in 1991, and complete implementation is expected by

                      We noted that OSHA conducts few evaluation studies. Many important
                      questions about how well programs and policies work are going
                      unanswered. For example, it would be useful to test the utility of some
                      of the approaches used by state-operated programs but not by OSHA-
                      approaches such as (1) using workers’ compensation data to target
                      inspections; (2) inspecting after all accidents, not just accidents resulting
                      in a fatality or hospitalization of five or more workers; and (3) requiring
                      employers to have safety and health programs. Nevertheless, we recog-
                      nize that an agency has to weigh the costs of such studies against other

                      Page20                        GAO/HRD-go66BROccupatione.lSafetyand    HealthOptione
Section 3

Strengthening Elnforcement

                        OSHA'S enforcement activities could be improved by enhancing the
                        standard-setting process so as to regulate more hazards, increase deter-
                        rence, and facilitate hazard abatement.

Enhance Standard

Examples of Problems    OSHA standards fail to (1) cover many health and safety hazards ade-
With Standard Setting   quately and (2) keep pace with knowledge about new or existing
                        hazards. In the health area, estimates of the number of new chemical
                        products introduced into the workplace range from 1,000 to 3,000 a
                        year.1 In comparison, as of 1989,osn~ standards regulated only about
                        630 substances, most of which are accounted for by a single air contami-
                        nants standard. This standard specifies permissible exposure levels, but
                        does not include other features, such as exposure monitoring, medical
                        surveillance, and removal. Fewer than 30 substances hazardous to
                        health are regulated by more comprehensive standards. Many of the
                        safety standards initially set are outdated or fail to address important
                        workplace hazards. For example, a presidential task force in 1976 esti-
                        mated that the standards governing machine guards that OSHAhad
                        adopted in 1971 covered only 16 percent of the machine types then in
                        use. As of 1989, these standards had not been updated.

                        Agency officials and outside experts have identified excessive delays in
                        standards promulgation as a major cause of the gap in coverage by stan-
                        dards. As of May 1988,14 of the 27 standards OSHAhad in process
                        through the basic rulemaking procedure (see fig. 3.1) had been under
                        development for over 4 years. Some examples of delayed individual sub-
                        stance standards include those regulating butadiene, cadmium, and
                        methylene chloride. Standards for all three substances remained in the
                        preproposal stage as of December 1989, despite 2 to 4 years having
                        passed since OSHA announced its intention to begin work on these stan-
                        dards and put them on its regulatory agenda.

                        ‘House Committee on Science and Technology, Neurotoxins at Home and in the Workplace, 99th
                        Cong., 2d Sew., 1986, H. Dot. 99-827.

                        Page 21                            GAO/HRD-!N-tMBR     Occupational   Safety and Health Options
                                         Section 2
                                         Strengthening   Enforcement

Figure 3.1: OSHA 6(S) Standard-Setting

                                                                                           I    OSHA Files a Significant Regulatory Action
                                                                                                          with OMB for Review

                                                                                                 Preproposal Stage (May Include Advance
                                                                                                     Notice of Proposed Rulemaking)

                                                                                                   OSHA Publishes Notice of Proposed

                                                   Public Hearing Not Hetd                                   Public Hearing Held

                                                              I                                      OSHA Decides to Issue Standard

                                                                                            r----   OMB Reviews Final Standard Draft

                                                                                            1          OSHA lssue;nal     Standard           1

                                         Quring this stage, Labor’s Policy Review Board and OMB review the proposed standard draft

                                         Page 22                             GAO/IiRMO46BR           Occupational   Safety and Health   Options
                        Seetlon 3
                        Strengthening   Jkforeexnent

                        Some standards regulating serious hazards were in process almost a
                        decade before completion. For example, 06~~ issued a final lockout or
                        “tagout” standard, governing the sudden activation of machinery, in
                        September 1989, after the standard had been in process since June
                        1980.2 (In our questionnaire, OSHAinspectors had cited a lockout situa-
                        tion as second in importance only to “confined space” as a hazard unreg-
                        ulated, at that time, by a specified standard.)

                        The time required to promulgate standards is a problem not only with
                        setting standards using the basic rulemaking procedure but also with
                        revising initial start-up health and safety standards that were estab-
                        lished under section 6(a) of the act. This section allowed OSHAto adopt,
                        without additional rulemaking, those standards established by other
                        federal agencies or adopted by national consensus.3 Under current law,
                        OSHA can only revise these consensus standards through its regular sec-
                        tion 6(b) rulemaking process (see fig. 3.1), even if the proposed revisions
                        are relatively noncontroversial and widely accepted.

Options for Enhancing   There is no single answer to OSHA’Sstandards-setting difficulties.
Standard Setting        Increasing staff and funding for standard setting would probably
                        increase the number of standards. However, OSHAestimates suggest that
                        additional resources alone may not be sufficient. Three legislative
                        options, including their advantages and disadvantages, are discussed
                        below (see fig. 3.2).

                        ‘This standard requires either (1) lockout, locks on machines to prevent their bell accidentally ener-
                        glzed or activated, or (2) tagout, tags warning of machine hazards when this warning would provide
                        the same degree of workplace protection as a lockout.
                        “Most of these start-up standards were safety standards issued by organizations such as the Amer-
                        ican National Standards Institute. In addition, these start-up standards established permissible exno-
                        sure levels for about 400 substances by using the threshold limit values set by the American
                        Conference of Governmental Industrial Hygienists.

                        Page 23                               GAO/IlRIWM6BR        Occupational   Safety   and Health   Options
                                   Section 3
                                   Strengthening   Enforcement


       GAQ Options to Reduce Delay
           in Standard Setting
                l   Establish an expedited process
                    to revise start-up standards
                l   Give OSHA independent
                    authority to require substance
                    testing by manufacturers
                l   Require OSHA to act on new
                    information and explain its

Option 1: Establish an Expedited   The Congress could amend the act to permit the agency to use an expe-
Standard-!Mting Fbxess for         dited process to revise the section 6(a) start-up standards. Such a proce-
Revision of Start-Up Standards     dure would enable OSHA to (1) provide workers with updated protection
                                   from hazardous substances that may be relatively noncontroversial but
                                   now lack adequate coverage and (2) keep existing standards current
                                   with scientific and technological advances.

                                   Several proposals would allow OSHAto develop more readily proposed
                                   revisions to the start-up standards. For example, the Administrative
                                   Conference of the United States has recommended the use of outside,

                                   Page 24                       GAO/HRD@O80BR   Occupational   Safety   and Health Optiwa
Section 8
Strengthening   Enforcement

nongovernmental consensus standards for some hazards.4 In the health
area, these consensus standards could be the threshold limit values
established by the American Conference of Governmental Industrial
Hygienists (ACGIH), NIOSH recommendations, or some combination of
these and other organization guidelines. Such an expedited process
would be restricted to the revision of the permissible exposure levels.

Alternatively, OSHAcould set up a special unit whose purpose would be
to gather information in order to revise existing exposure limits. Every 2
or 3 years, this unit would propose revisions, based on the consensus it
identified in the scientific literature, to the exposure limits. OSHAcould
internally evaluate this list of proposed revisions to permissible expo-
sure levels and use public hearings to obtain additional information.

After 06~~ had developed the proposed revisions, the Congress could
allow OSHAto use a streamlined rulemaking process, outside of the reg-
ular 6(b) procedure, to make the revisions. To revise the start-up stan-
dards, the Congress, for example, could allow OSHA to use the same
section 6(a) authority again or the Congress could allow 06~~ to use
modified 6(b) procedures, such as an abbreviated notice and comment
period for public input or more strictly circumscribed public rights.

Even though the revisions themselves might be limited in scope, OSHA
would still have the option to propose complementing standards cov-
ering medical surveillance, exposure, or other issues. This would be con-
sistent with the act’s approach of initially establishing a minimum level
of protection for workers, to be followed with more comprehensive regu-
lation However, critics point out that a focus on revising the permissible
exposure levels may reduce the pressure on OSHA to secure more compre-
hensive protection.

Perhaps the most difficult issue to resolve in carrying out an expedited
process would be the choice of the consensus standards OSHA would use
aa the basis for revision. In the health area, OSHAused the threshold
limit value guidelines issued by ACGIH in revising the 1989 air contami-
nants standard. Yet, some observers have criticized those guidelines as
poorly supported by scientific evidence. On the other hand, using NIOSH
recommendations may pose other problems. In making recommenda-
tions, NIOSH is not required to consider such factors as the feasibility of

4T.0. McGarity and S.A. Shapiro, OSHA Regulation: Regulatory Alternatives and Legislative Reform,
Administrative Conference of the United States (Sept. 1987), p.1101.

Page 25                             GAO/HR.D-BO-MBR     Occupational   Safety   and Health   Optiona
                               Section 2
                               Strengthening   Enforcement

                               implementation, which OSHA would have to consider in revising the stan-
                               dards; thus, additional work may be needed to modify NIOSH recommen-
                               dations for use in operational standards.

                               Having OSHA develop its own consensus standards from reviews of the
                               literature and other available information may avoid some of these diffi-
                               culties, but that approach may be unacceptable to employers and
                               workers. The procedure OSHA would use to determine what hazardous
                               substances it will update and their level of regulation would have to be
                               persuasive to encourage participation by employers and workers and
                               avoid litigation.

                               Further, recent agency success in its 1988-89 efforts to revise the start-
                               up standards on air contaminants raises the question of whether an
                               expedited process is necessary. OSHA used the regular 6(b) rulemaking
                               process and the 1987-88 ACGIH threshold limit value guidelines to revise
                               the permissible exposure levels. The agency completed the project in
                               about 18 months, a short time compared with other OSHAhealth stan-
                               dards. However, it is unclear whether that success was an aberration or
                               a demonstration of the agency’s ability to revise standards quickly. It
                               appears to have been accomplished, in part, by diverting a substantial
                               portion of the program funds that would otherwise have been used for
                               evaluation and other activities. Moreover, interested parties are chal-
                               lenging the standard in the courts where, as of April 12, 1990, it faced a
                               total of 17 lawsuits.

Option 2: Give OSHA            The Congress could provide OSHAwith limited authority to require data
Independent Authority to       collection and testing by manufacturers of hazardous substances, that
~m$~~nce          Testing by   is, chemicals and air contaminants.6 OSHAcould function more effectively
                               if it had better data, particularly about the risks posed by chemicals.
                               However, epidemiological and animal test data have been published for
                               only a limited number of the thousands of chemicals found in the work-
                               place. In addition, most testing of chemicals that are candidates
                               for regulation is done outside of the government-by      university
                               researchers, commercial laboratories, or manufacturers themselves-
                               and OSHAmust await the results. If OSHA was able to require manufac-
                               turers to test substances slated for regulatory action, the agency would

                               “The Congress did something similar under the Toxic Substances Control Act. EPA has authority
                               under the act to order anyone who manufactures or processes a chemical to test it under certain
                               conditions. The act established the Interagency Testing Committee, with representatives from eight
                               agencies, including OSHA, to make recommendations to EPA concerning which chemicals should be
                               tested. The committee compiles a list of recommended chemicals for EPA to require testing by

                               Page 26                             GAO/HRD-BO-gBBB      Occupational   safety   and Health Options
                                 Section 3
                                 Strengthening   Enforcement

                                 most likely have better data on which to base standards and could
                                 improve its regulatory performance.

                                 However, requiring manufacturers to perform tests could result in dupli-
                                 cation of NIOSH'S research activities. The relationship of NIOSH and OSHA
                                 in determining the list of substances to be tested and the type of testing
                                 to be done would have to be specified.

Option 3: Require OSHA to Act    06~~ could be held accountable for responding promptly to outside
on New Information and Explain   requests for standard-setting actions. OSHA receives periodic recommen-
Its Decisions                    dations from several sources about the need for standard-setting
                                 activity. For example, NIOSH recommends (1) exposure limits for poten-
                                 tially hazardous substances or conditions in the workplace and (2) pre-
                                 ventive measures designed to reduce or eliminate the adverse health
                                 effects of these hazards. OSHA’S own standing advisory committees on
                                 specific topics also provide the agency with recommendations.

                                 OSHA  is not required to respond or make public comment on recommen-
                                 dations from NIOSH or its standing advisory committees, but OSHAis
                                 required to respond to certain chemical referrals from EPA. Under sec-
                                 tion 9(a) of the Toxic Substances Control Act, EPA may refer to other
                                 agencies, including OSHA,a chemical that EPA believes poses an “unrea-
                                 sonable risk.” For example, EPA would request that OSHA determine
                                 whether a chemical substance poses a risk to workers and whether a
                                 rulemaking action by OSHA would sufficiently reduce the risk.

                                 Under section 9(d) of the act, EPA can also refer substances to OSHA when
                                 EPA has determined that a substance is a workplace hazard, but has not
                                 found “unreasonable risk.“”

                                 OSHA has considered that issuing an Advanced Notice of Proposed
                                 Rulemaking meets the legislative requirements to respond, and EPA has
                                 accepted this position. Even providing this response, however, has not
                                 come quickly. For example, CBHAtook 6 months to agree with EPA that
                                 OSHA has authority to regulate butadiene and that the substance poses
                                 an unreasonable risk; it took an additional 6 months to issue the
                                 advanced notice. OSHAtook similar amounts of time to respond to an EPA
                                 referral on glycol ethers.

                                 “During the last 8 years, EPA has referred the following to OSHA: three substances under section
                                 Q(a) and four under section Q(d).

                                 Page 27                              GAO/BRD-9086BB      Occupational   Safety   and Health   Options
                           Se&ion 3
                           Strengthening   Enforcement

                           To facilitate greater agency accountability and the use of existing infor-
                           mation as well as public input, the Congress could require OSHAto list
                           NIOSH recommendations and EPA referrals in its regulatory agenda along
                           with OSHA’Sproposed plan of action on each. As for advisory commit-
                           tees, OGHAcould publish committees’ recommendations for public com-
                           ment. At the close of the comment period, 0s~~ could summarize and
                           give its own views within a specified period of time. However, this
                           option could result in OSHA’Soverextending its resources as it attempts
                           to respond to each item.

Increase Deterrence

Problems With Deterrence   The deterrent effect of OSHA enforcement efforts has been a problem for
                           at least two reasons. First, because of limited resources, OSHA inspects
                           most employers rarely, if at all. Second, sanctions for noncompliance are
                           weak. Civil penalties, on the whole, have been low, particularly when
                           compared with the cost of abatement. The available criminal sanctions
                           are limited and rarely result in a conviction.

Infhquent Inspections      In fiscal year 1989, we estimate that OSHA had about 800 compliance
                           officers (not including about 300 supervisors and trainees) to inspect
                           almost 3.6 million employers and about 55 million workers. State-
                           operated safety and health programs had an authorized staffing level of
                           about 1,060 inspectors covering 2.3 million employers with an estimated
                           34 million workers, According to our questionnaire data, inspectors
                           averaged 72 inspections in fiscal year 1988. Safety compliance officers
                           averaged 102 inspections, and health compliance officers averaged 32

                           OSHA tries to target scheduled inspections to worksites thought likely to
                           be hazardous but, in fact, conducts relatively few inspections in high-
                           hazard worksites. For example, in fiscal year 1989, only 10 percent of
                           the worksites OSHA identified as high hazard for safety reasons were
                           inspected. Similarly, only 3 percent of the worksites identified as high
                           hazard for health reasons were inspected. Of these inspections, about
                           half were conducted in response to specific evidence of hazardous condi-
                           tions at a worksite, such as complaints or referrals.

                           Page 23                       GAO/HRIMO86BR   Occupational   Safety and Health Options
                    Section 3
                    Strengthening   Enforcement

                    In addition, OSHA’S inspection targeting procedures are hampered by
                    data limitations in each of three major targeted (“programmed”) inspec-
                    tion categories: safety inspections in high-hazard manufacturing indus-
                    tries, safety inspections in the construction industry, and health
                    inspections in high-hazard industries.’ For example, OSHA targets safety
                    inspections outside the construction industry on the basis of manufac-
                    turing industries’ average lost workday injury (LWDI) rates, as found in
                    the BIS annual occupational safety and health survey.8 But using BIS
                    annual survey data has several shortcomings, including employers’
                    underreporting, time lags between collection and availability of data,
                    and lack of OSHA access to “establishment-level” (employer) survey

                    As OSHA pointed out in its comments on this report, it has recently taken
                    several steps to extend its impact beyond the inspection of individual
                    worksites. In 13 instances, OSHA has been able to get the employer to
                    agree not only to correct violations found on the OSHAinspection, but
                    also to make similar corrections in other plants owned by the employer
                    where the same violative conditions exist. Moreover, in two instances,
                    OSHA used review of records at corporate headquarters to identify viola-
                    tions without having to visit the separate worksites of the individual
                    company. If used more extensively, these strategies could significantly
                    increase the impact of OSHA’Sinspections.

Limited Penalties   Even when worksites are inspected, the penalties have less impact than
                    originally intended. OSIIA’Spenalties have gone unchanged since the act
                    was enacted in 1970. The maximum fines range from $1,000 for a non-
                    serious violation to $10,000 for willful and repeat violations. About 76
                    percent of the OSHAinspectors we surveyed believed that the civil fines
                    allowed by the act should be increased to provide a stronger deterrent

                    OSHAhas sometimes levied substantially higher penalties than the max-
                    imum by citing employers on an instance-by-instance approach. With

                    7Targeting procedures for firms in low-hazard manufacturing and nonmanufacturing industries are
                    based on random selection, but these procedures account for few inspections. Most of OSHA’s
                    programmed inspections are safety inspections done in construction or manufacturing industries.

                    ‘An LWDI rate is the average number of injuries that required days away from work or restricted
                    work activity per 100 full-time workers per year.

                    “For example, a study done for GAO compared fiscal years 1986,1986, and 1987 GSIIA inspection
                    results for over 2,700 inspections with the LWDI rates those employers reported to BIS. It was found
                    that the number of serious violations per inspection was more closely related to an employer’s LWDI
                    rate than to whether the employer was in a low-hazard or high-hazard industry.

                    Page 29                              GAO/HRD-9040BR      Occupational   Safety   and Health   Options
                             Section 3
                             Strengthening   Enforcement

                             this approach, employers who are “egregiously” violating OSHAstan-
                             dards are cited for every instance of a standard violated, rather than
                             being assessed one penalty for a certain type of violation, such as
                             recordkeeping. Consequently, the assessed fines can be substantially
                             larger than the maximum $10,000. However, OSHAhas used this
                             approach sparingly-about       100 times-and an individual instance, no
                             matter how severe, is still limited by the act. The majority of the 06~~
                             inspectors we surveyed (61 percent) said this approach should be used
                             more often, and 46 percent believed that such penalties have a signifi-
                             cant effect on other employers’ compliance with OSHArequirements.

                             OSHA   policies for initially proposing and, in many cases, subsequently
                             reducing fines further limit any deterrent effect. For example, although
                             violations classified as “serious” by OSHA carry a maximum fine of
                             $1,000, the average assessed penalty per serious violation was $261 in
                             fiscal year 1988. This occurs, in part, because the initial fine proposed
                             may be as much as 80 percent less than the maximum depending on the
                             employer’s (1) size of company (fine can be reduced up to 40 percent);
                             (2) good faith (30 percent), which usually means the employer has
                             already abated or promises to abate the hazard quickly; and (3) history
                             of previous violations (10 percent). In addition, OSHAarea office direc-
                             tors are authorized to further reduce the proposed fine as a result of
                             informal discussions with an employer.

Limited Criminal Sanctions   OSHA  has the authority to refer certain violations to the Department of
                             Justice for criminal prosecution. However, successful criminal prosecu-
                             tion has been very limited. The act only allows criminal penalties if
                             (1) an employer willfully violates OsnA regulations, resulting in a
                             worker’s death, or knowingly makes false representation or (2) a person
                             knowingly tells an employer that an inspection is scheduled.

                             In the use of criminal sanctions, 0%~ has referred 67 cases to the
                             Department of Justice since 1970-22 of them since 1986. Of the 67
                             cases, 14 cases (26 percent) resulted in convictions. In over half of the
                             cases, the Department of Justice declined to prosecute.

Options to Increase          We believe that the options we describe may increase the deterrent effect
Deterrence                   of OSHA’S enforcement program (see fig. 3.3). These options have possible
                ”            advantages and disadvantages, including added costs to OSHA or
                             employers or both. We grouped these options into those that increase

                             Page 30                       GAO/IllUWO@BR   Occupational   Safety   and Health Optiona
                             Section 3
                             Strengthening   Enforcement

Figure   3.3

          GAQ Options to Increase
               l   Obtain better information to
                   target inspections
               l   Inspect more of the hazardous
               l   Increase size of civil penalties
               l   Expand criminal sanctions
               l   Bar violators from federal
                            the probability of inspecting hazardous worksites and those that
                            would impose stricter penalties for violations. Increasing inspections
                            of the more hazardous worksites might be accomplished by (1)
                            obtaining better information to target inspections and (2) reducing
                            the amount of time inspectors spend on inspections when there are
                            no serious violations. Stricter penalties could come from higher civil
                            penalties, expansion and use of criminal sanctions, or loss of the
                            right to participate in federal contract competition.

                            Page 31                        GAO/HRD-3086BR   Occupational   Safety   and Health Options

Option 4: Obtain EMter            The information OSHAmight use to better target programmed inspections
Information to Target Inspections could come either from (1) requiring employers to report data they are
                                   already required to record at worksites or (2) using other data sets that
                                   already exist or could be created.

Option 4a: Require Certain         Labor could require certain employers to report injuries and illnesses
Employers to Report Injury and     directly to OSHA, regardless of whether these employers report to BIS as
Illness Data to OS-IA              part of the annual survey sample. Direct reporting of these data, which
                                   O~HA already requires employers to record at their worksites, could pro-
                                   vide systematic detailed data, thereby improving the use of inspection
                                   resources. One approach would be to require such reporting of all
                                   employers in high-hazard industries. A second approach would require
                                   this for all employers, regardless of industry, that have injuries and ill-
                                   nesses above certain levels. The effectiveness of OSHA'S targeting pro-
                                   gram may, thus, be enhanced by targeting programmed inspections
                                   using an individual employer’s injury rate. In addition, OSHAcould focus
                                   its enforcement, as well as education and training efforts, on employers
                                   with high injury and illness rates in industries known to be hazardous.

                                   Direct reporting should place no additional recordkeeping burden on
                                   employers. This is because employers are already required to record
                                   information on every work-related injury and illness, even though no
                                   employers are required to report this information to OSHAand most
                                   employers are not required to report it to BLS. When dual reporting to
                                   OSHA and BLS would occur, the employer could send the data to OSHA,
                                   which would, in turn, send it to Bu.

                                   The major disadvantages in the first approach are (1) some employers
                                   might be encouraged to underreport idjuries and illnesses, (2) OSHA
                                   would still lack information about establishments with high injury and
                                   illness rates that are not in high-hazard industries, and (3) additional
                                   OSHA resources would be required to analyze the data.

                                   In the second approach, OSHA could focus its enforcement, as well as
                                   education and training activities, on all employers with high injury and
                                   illness rates, A major advantage of this approach is that all establish-
                                   ments with high injury and illness rates would be required to report and
                                   none would be overlooked. However, this approach would constitute an
                                   even higher incentive than the first approach for employers to under-
                                   report injuries and illnesses.

Option 4b: More Ny   Use   OSHAcould explore the availability and potential use of other data to
Other Data                 help identify the most hazardous worksites to inspect. These data
                           include (1) workers’ compensation records, (2) accident reports, (3) con-
                           struction permits, and (4) notices of hazardous substances being used at

                           The Occupational Safety and Health State Plan Association reported
                           that 16 of the 25 states or territories that administer their own occupa-
                           tional safety and health programs use the first category of data,
                           workers’ compensation, for a variety of safety and health-related pur-
                           poses. Most often these data are used to aid in scheduling worksite
                           inspections. The second category, accident reports, is another potential
                           source of data on worksites that may be useful for targeting inspections.
                           These reports would make a potentially powerful data base for identi-
                           fying industry hazards and targeting inspections. At the very least, such
                           an accident data base could generate ideas for special emphasis inspec-
                           tion programs. At present, however, employers only report fatal acci-
                           dents or “catastrophes” (hospitalization of at least five workers) to
                           06~~. Thus, many accidents that might suggest safety and health viola-
                           tions are not reported to 0s~~. In contrast, MSHA requires mine operators
                           to report all accidents resulting in injury or death and some accidents
                           that do not.

                           The third category, construction permits, could be required to help OSHA
                           target projects that involve a substantial risk of injury, as is done in the
                           California state program. In practice, it could be more a matter of con-
                           tractors notifying 06~~. This notification could be required selectively
                           for federally funded projects, for projects above a certain cost, or for
                           specific hazardous operations (such as trenching or high-level scaf-
                           folding). H.R. 4662, pending before the 1Olst Congress (1989-90), for
                           example, would require all construction contractors to provide the Sec-
                           retary of Labor with specified data before commencing construction

                           The fourth category, notices of hazardous substances, could be a useful
                           supplement to, or substitute for, targeting based on previously identified
                           health violations. Some inspectors pointed out that it would be helpful
                           to know what chemicals are being used at individual worksites and in
                           what quantities. Some employers report these data under the Emer-
                           gency Planning and Community Right to Know Act of 1986. OSHAmay be
                           able to use these data to better target health inspections.

                           Page 33                     GAO/HRIMO86BR   Occupational   Safety   and Health   Options
                                  Stmngthenhg   Enforcement

                                  The advantages of improved inspection targeting would be an increase
                                  in inspection activity at hazardous worksites, giving a greater return for
                                  OSHA’Sinspection effort. A more credible inspection targeting policy
                                  might also better encourage employers to abate hazards before they are
                                  inspected. Potential difficulties and disadvantages include the time and
                                  resources invested in identifying and testing targeting alternatives and,
                                  possibly, in collecting additional data. Finally, as long as osu~ has the
                                  resources to visit only a fraction of the nation’s worksites each year,
                                  even the best possible inspection targeting system will leave many haz-
                                  ardous worksites uninspected.

Option 6: Inspect More of the     OSHAcould inspect more of the hazardous worksites if it (1) reduced the
Hazardous Worksites               time spent on inspections with nonserious violations and (2) allowed
                                  private-sector consultations to substitute for some inspections.

Option Sa: Reduce Time Spent on   One way to increase the number of inspections each inspector can con-
Inspections With Nonserious       duct is to spend less time on inspections with no serious violations. This
Violations                        could be done by preparing no citation if the only violations were ones
                                  that CJSHA  considers to be “nonserious.” In fiscal year 1989, OSHAissued
                                  about 11,000 citations that involved only nonserious violations; 27 per-
                                  cent of all inspections resulting in citations were for nonserious viola-
                                  tions only. According to OSHAofficials, to do this in the federally
                                  operated program would require a change in the legislation, even though
                                  at least three states with osHA-approved, state-operated programs are
                                  using such a procedure.

                                  California, Nevada, and Washington use this procedure to reduce the
                                  processing time for nonserious violations; this enables these states to
                                  focus inspection resources on more serious violations. Under this proce-
                                  dure in the California state program, employers agree, during an inspec-
                                  tion, to abate the nonserious violation(s) and waive their appeal rights,
                                  In turn, the state agrees not to issue a citation. According to OSHAregion
                                  IX officials, using this procedure, state inspectors in Nevada averaged
                                  14 percent more inspections.

                                  This procedure could allow OSHAinspectors more time for other func-
                                  tions, such as programmed inspections of high-hazard employers,
                                  without increasing the inspection work force. A disadvantage of using
                                  this procedure may be that there would be little incentive for employers
                                  to correct minor violations until inspected because there would be no
                                  risk of a fine. However, there is already little financial incentive to
                                  avoid a fine because the average fine is $2 per nonserious violation.

                                  Page 34                     GAO/IXRD9086BR   Occupational   Safety   and Health   Options
                                  Streaening      Enforcement

Option Sb: &low Private-Se&or     Another way to stretch the existing inspection work force would be to
Consultations to Substitute for   allow, under certain conditions, consultations by osn&certified private
Some Inspections                  sector safety or health specialists as substitutes for targeted inspections,
                                  This would be an extension of OSHA’S current policy of allowing certain
                                  small employers, through its consultation program, to obtain a l-year
                                  exemption from targeted inspections. This program grants these exemp-
                                  tions to employers who receive a comprehensive consultation visit, cor-
                                  rect all identified hazards, and demonstrate that they have an effective
                                  safety and health program in operation.lO

                                  O~HAcould extend this option to other employers, including those who
                                  now are unable to obtain services under the consultation programs
                                  funded by OSHAand the states, because those programs give priority to
                                  small employers. By allowing employers to pay for these consultations,
                                  OSHA’Scosts would be limited primarily to (1) establishing procedures
                                  for certifying private sector specialists and (2) monitoring the quality of
                                  the services these specialists provide, as 06~~ now monitors the consul-
                                  tation programs states provide.

                                  A possible disadvantage of such an approach is the potential conflict of
                                  interest. The safety or health specialists might be reluctant to antago-
                                  nize employers by identifying all the hazards. A vigorous monitoring
                                  role by 0%~ would be needed to overcome such difficulties.

Option 6: Increase the Size of    Given that OSHAis unable to inspect many worksites, it needs other ways
Civil Penalties                   to deter violators. Higher civil penalties are one potential deterrent.
                                  Increasing the maximum civil penalties is one way to enable OSHA to
                                  assess larger fines; another way is to more fully use existing penalties.

Option 6% Increase the            The Congress could increase the maximum civil penalties established in
Maximum Civil Penalties           the act. OSHA’Sinspectors strongly endorsed the need to increase the
                                  maximum civil penalties in order for penalties to serve as a deterrent to
                                  employer safety and health violations. Almost half believed the penal-
                                  ties should be greatly increased; only 2.7 percent believed the penalties
                                  should be decreased. Half of the inspectors also believed that the max-
                                  imum penalty for willful violations should be at least $26,000 per
                                  violation and $6,000 for serious violations. Penalty increases suggested
                                  by OSHAinspectors are about the same as those proposed in S. 490
                                  during the 1Olst Congress. This bill would raise (1) the current penalty

                                  l”R.elatively few (about 2 percent) employers who receive consultation visits request an inspection
                                  exemption. OSHA officials believed employers may conaider it too difficult to demonstrate that they
                                  have an effective safety and he&h program.

                                  Page 86                              GAO/lilUbMBR         Oempational    Safety   and Health   Options
                               Section 3
                               Strengthening   Enforcement

                               limit of $1,000 for a serious violation to $3,000 and (2) the current
                               $10,000 limit for willful and repeated violations to $30,000.

cl$tbn.E: Nly   use Existing   Without any legislative change, OSHA could increase the penalties
                               employers pay by (1) initially proposing higher penalties, (2) making
                               fewer or smaller reductions in initial proposed penalties, and (3) making
                               greater use of maximum penalties, such as the $1,000 a day penalty for
                               failure to abate.

                               According to the act, an initial proposed penalty can be set less than the
                               maximum by considering a number of factors, such as the size of the
                               company. Although the act is silent concerning the extent to which these
                               factors can affect the penalty, OSHA’Sguidelines allow for up to 80 per-
                               cent reduction from the maximum for these factors. This reduction rate
                               could be lowered to increase the deterrent value of penalties.

                               OSHAjustifies reductions to the initially  proposed penalty primarily as a
                               means to get employers to abate workplace problems quickly without
                               delaying abatement by contesting citations. (If employers contest cita-
                               tions, they do not have to abate the cited hazard until the case is
                               resolved, thereby leaving workers unprotected.) For example, between
                               March 1986 and February 1990, OSHAreached agreements with
                               employers cited for egregious violations that reduced the initially pro-
                               posed fines 66 percent-from     a total of $29 million to $10 million-even
                               though these employers had put their workers at serious risk through
                               noncompliance. OSHAargues that the reductions were needed, in part, to
                               have employers abate hazards quickly. However, by doing so, OSHAmay
                               be giving employers the impression that they will not be significantly
                               penalized even if they willfully or repeatedly violate safety and health

                               Penalties for failure to correct a violation may be up to $1,000 for each
                               calendar day that the violation continues beyond the final abatement
                               date. However, OSHA’SField Operations Manual says that normally the
                               total proposed penalty for failure to abate shall not exceed 10 times the
                               amount of the daily proposed penalty. Some inspectors believe that OSHA
                               should not restrict the failure-to-abate penalty, They believe an
                               employer should be penalized for each day that a violation goes
                               unabated to provide an incentive for employers to abate hazards.

                               Page 36                       GAO/~WBR      Occupational   Safety   and Health   Options

                           A possible negative consequence of ~~HA’Slevying higher fines is that
                           doing so might increase conflict between employers and OSHA,leading to
                           more contested cases.

Option 7: Expand and Use   To deter employers from willfully violating OSHAstandards, the Con-
Criminal Sanctions         gress could increase the severity of the act’s criminal sanctions and
                           encourage OSHA to use such sanctions. The Congress has criticized OSHA’S
                           record on the number of cases OSHA has referred to the Department of
                           Justice for criminal prosecutions-67    in almost 20 years.” This number
                           has been seen as indicating a reluctance to use criminal sanctions.

                           CSHA could do more administratively    to obtain evidence, particularly on
                           the necessary issue of criminal intent. OSHAhas no investigation unit to
                           handle potential criminal cases. Instead, it relies on the inspector to
                           review the accident scene and to recommend appropriate action. Fur-
                           thermore, the employer has 48 hours to report a fatality accident, even
                           though it is generally recognized that getting to an accident scene
                           quickly enhances an investigation.

                           In contrast, the state of California has an investigative unit-the
                           Bureau of Investigations- for accidents. It consists of 10 people, 8 of
                           whom are investigators, and fatalities must be reported immediately. In
                           addition, California law is less restrictive than federal law, allowing
                           criminal prosecution for a wider range of violations. The investigative
                           unit provided data to local district attorneys who filed charges in 41 of
                           92 cases referred to them in 198686 alone. In comparison, the Depart-
                           ment of Justice filed charges in 19 of the 67 OSHAreferrals from 1970 to
                           February 1990. As of February 1990, the Department of Justice had
                           seven open cases.

                           The Congress could also increase the strength of sanctions for criminal
                           cases so they correspond to the seriousness of the offenses. The size of
                           the fine is, in the opinion of the Assistant Attorney General for Legisla-
                           tive and Intergovernmental Affairs, no longer limited by the act;12in
                           addition, legislative changes could remove other limitations on the
                           strength of criminal sanctions. These changes might address the nature

                           1‘See Getting Away With Murder in the Workplace: OSHA’s Nonuse of Criminal Penalties for Safety
                           Violations (H. Rept. 28, Oct. 4, 1988).
                           ‘2According to the Department of Justice, the Crime Control Act of 1984, which increased criminal
                           fines for willfully violating federal statutes to $260,000 for individuals and $600,000 for companies,
                           is applicable to Occupational Safety and Health Act provisions. Such fines should increase the
                           prosecutive appeal of OSHA cases. However, OSHA officials told us that they have yet to pursue a
                           criminal sanction under the Comprehensive Crime Control Act.

                           Page 37                               GAO/I3RD9O86BR       Occupational   safety   and Health   Options
                               of the charge that can be brought, the potential period of imprisonment,
                               or the conditions under which criminal prosecution can be pursued.
                               Under the act, a criminal violation is a misdemeanor offense with a 6-
                               month maximum jail sentence; employers can only be charged for cases
                               in which fatalities occur. These punishments may be doubled for convic-
                               tions following the first offense. In contrast, the Resource Conservation
                               and Recovery Act of 1976, which deals with hazardous waste, provides
                               for up to 6 years’ imprisonment for knowingly putting a person in immi-
                               nent danger of serious bodily harm or death, whether or not a fatality

                               The Department of Justice supports the idea of increasing OSHA’Scrim-
                               inal sanctions against employers for violation of OSHAstandards.
                               Responding to a congressional committee, the Department of Justice
                               said, in a January 1989 letter, that it “would also be inclined to give
                               serious consideration to proposals to expand the application of criminal
                               sanctions to include violations which lead to serious injuries in addition
                               to those which lead to the death of an worker.”

                               According to OSHA officials, however, increasing criminal sanctions could
                               lead to delays in having hazards abated. Employers would be more
                               inclined to contest violations that could possibly result in criminal

                               Two bills are pending before the 1Olst Congress-S. 2154 and H.R.
                               4060-which     would expand criminal sanctions by (1) making violations
                               felonies and (2) allowing OSHAto pursue criminal sanctions in certain
                               nonfatality cases, as well as substantially raising the maximum penalty

Option 8: Bar Violators From   Federal agencies could use information from OSHAto bar employers who
Federal Contract Competition   repeatedly violate OSHA safety and health standards from competing for
                               federal contracts. Doing so could be an incentive for employers to
                               comply with safety and health standards. Currently some agencies can
                               do this administratively, but to achieve wider applicability legislation is
                               probably needed. The federal government would, thus, be using the eco-
                               nomic leverage of contracts to encourage employers to comply with OSHA
                               regulations. The significant dollar value of federal construction con-
                               tracts alone could provide a strong incentive for employers to meet ~SHA

                               13For example, the Chicago Tunnel and Reservoir Plan project in Chicago represents federally    funded
                               capital expenditures of over $1.2 billion.

                               Page 38                              GAO/llRD-9086BR      Ocmpational    Safety   and Health   Option13
                       SUening    Enforcememt

                       For example, construction projects that receive EPA assistance must
                       comply with various federal regulations, including 06~~ standards. In
                       cases for which there is sufficient evidence of failure to meet responsi-
                       bilities under the CBHAregulations, both contractors and grantees-bid-
                       ders-could be debarred or suspended from eligibility for future EPA
                       financial assistance.

                       It is unclear how different agencies should interpret the records of bid-
                       ders’ compliance with OSHAstandards. If agencies are required to devise
                       their own criteria to evaluate an employer’s health and safety record,
                       inequities may result as companies are able to win contracts from some
                       agencies but are ineligible for contracts with other agencies. Any regula-
                       tion setting such criteria should pay attention to these issues as well as
                       those of equity and administrative cost.

Improve Hazard-
Abatement Procedures

Problems With Hazard   Some employers have little incentive to abate promptly the hazards CEXA
Abatement              inspectors identify. Abatement can be delayed while (1) CJSHA obtains a
                       court order to get imminent hazards corrected or (2) employers contest
                       an OSHAcitation. In addition, 06~~ conducts few follow-up inspections to
                       confirm that employers have complied with their agreements to abate
                       hazards; OSHAalso does not require that employers provide evidence,
                       such as photographs or invoices, that abatement has taken place.

Options to Improve     We believe that two options to better ensure abatement (see fig. 3.4)
Abatement              would encourage employers to abate the identified hazards more
                       quickly-both   in imminent danger situations and where the employer is
                       contesting the citation. A third option would give OBHAmore information
                       about which employers have complied with their agreements to abate

                       Page 39                    GAO/ERD&MMBR    Ocmpation~~I   Safety   and Health   Options
                                   8ection 3
                                   Strengthening   Enforcement

Figure 3.4

        GM Options to Improve Hazard-
           Abatement Procedures
                l   Give inspectors shutdown
                    authority in imminent danger
                l   Protect workers while citation
                    is contested
                0 Require proof of hazard

Option 9: Give Inspectors          In cases of imminent danger, the Congress could give OSHAinspectors
Shutdown Authority   in Imminent   shutdown authority without having to obtain a court order. MSHA and
Danger Situations                  some state-operated safety and health programs have similar authority.

                                   Imminent danger conditions should be quickly abated and, according to
                                   06~~ inspectors, generally are. OSHAcould not provide data concerning
                                   the time involved in obtaining abatement of imminent dangers using the
                                   current procedures, which are described in appendix II. OSHAcan usually
                                   get a court injunction, a region IX OSHAofficial said, within 24 hours.
                                   However, OSHAinspectors reported that workers were injured while
                                   CBHAwas attempting to get abatement. Almost 80 percent of the OSHA

                                   Page 40                       GAO/HRD-9O8f3BR   Occupational   Safety   and Health   Optiona
                                    Section 3
                                    Strengthening   Enforcement

                                    inspectors said they should have shutdown authority in cases of immi-
                                    nent danger.

                                    One disadvantage of this approach might be that inspectors would abuse
                                    the shutdown authority. However, the experiences of MSHAand the Cali-
                                    fornia state program provide little evidence that this would occur. In
                                    fiscal year 1988, MSHA used its shutdown authority for imminent danger
                                    about 1,200 times in the 97,217 inspections performed-about        1 percent
                                    of the inspections. In fiscal year 1987 (latest available data), the Cali-
                                    fornia program used its shutdown authority 72 times while conducting
                                    about 18,600 inspections- about 1 percent of the inspections.l*

Option 10: Protect Workers          The Congress could require employers to abate hazards while the
While Citation Is Being Contested   employer is contesting a citation or penalty, providing workers with
                                    greater protection during this period. According to the act, if an
                                    employer contests OSHA’Sfindings, the employer does not have to abate
                                    the hazard until the case is resolved except in two situations: The
                                    employer must correct the hazard when (1) only the penalty amount is
                                    contested or (2) the hazard presents an imminent danger to workers.
                                    However, according to OSHA’Sdeputy director for compliance programs,
                                    an employer rarely contests only the penalty amount-the employer
                                    usually contests the entire citation.

                                    If a hazard does exist, workers will continue to be at risk throughout the
                                    period of dispute over the citation. Given that the number of contested
                                    inspections has risen in recent years (from 1,066 in fiscal year 1984 to
                                    3,372 in fiscal year 1989) protection may be delayed for an increasing
                                    number of workers.

                                    A disadvantage to requiring abatement before disagreements are
                                    resolved is that the employer must comply before having his or her case
                                    heard-and the actions undertaken may ultimately be judged unneces-
                                    sary. As a compromise, employers could be encouraged to provide at
                                    least temporary protection without requiring complete hazard abate-
                                    ment. If the employer refuses to provide reasonable protection for
                                    workers while a citation is in dispute, the employer could be assessed a
                                    surcharge or additional penalty if O~HRC upholds OSHA’Scitation.
                                    Another option could be additional penalties if workers are injured
                                    while an employer is contesting a citation. The act would need to be
                                    amended to implement either alternative.

                                    141tshould be noted that shutdown does not necessarily mean closing an entire worksite, but, for
                                    example, shutting down a piece of machinery because the safety guard is missing.

                                    Page 41                              GA0/BR.D9086B&       Occupational   Safe@ and Health    Options
                          Strengthening   Fhforcement

0ptionll:RequireProofof   OSHAcould, with an administrative change, establish a regulation
Hazard Abatement          requiring employers to provide proof that abatement has taken place.
                          This would supplement OGHA’Scurrent primary reliance on voluntarily
                          provided written assurance from the employer.

                          Seventy-two percent of OSHAinspectors believe that abatement verifica-
                          tion procedures should be changed. Of those, 76 percent believed that
                          OSHAshould do more follow-up inspections. While follow-up inspections
                          would provide the best assurance that abatement has taken place, @MA
                          has too few inspectors to do many follow-ups. In the absence of follow-
                          up inspections, 06~~ needs to obtain evidence from employers in other
                          ways. Currently, OSHAasks employers to provide documentation, such
                          as invoices and photographs, along with their statements that abate-
                          ment has taken place. However, there is no penalty to employers for
                          failing to provide this evidence and, when it is not submitted, CEMAhas
                          only the employer’s statement unless a follow-up inspection is per-
                          formed. A regulation requiring documentary evidence might give OSHA
                          better information about compliance.

                          Page 42                       GAO/HRDSMtlBR   Occupational   Safety   and Health   Options
iStrengtheningthe Rolesof Deployers
and Workers

                   One way to improve safety and health in the workplace may be to
                   strengthen the roles of employers and workers. This would mean both
                   (1) encouraging employers and workers to identify and correct work-
                   place hazards and (2) increasing OSHA’S education and training efforts so
                   that employers and workers would have the information they need to do

                   The major problems with the current involvement of employers and
Problems With      workers are their (1) lack of information about workplace hazards and
Current Roles of   how to correct them and (2) minimal active involvement in improving
Employers and      workplace safety and health.
Work&&             OSHA  inspectors and safety and health experts whom we interviewed
                   expressed concern about the effectiveness of OSHA’S education efforts in
                   meeting the needs of employers or workers. In general, the most
                   common criticism was that OSHA was providing insufficient education
                   and training to workers and employers. Specific criticism was directed
                   at OSHA for providing too little information to small employers and to
                   certain groups of workers, such as those who are in construction, non-
                   English speaking, employed in small businesses, and nonunion.

                   Many experts we interviewed believed that employers can take a more
                   active role in providing worker safety and health. They believe that too
                   many employers limit their efforts to compliance with specific stan-
                   dards-if they even do that-rather       than taking a more assertive
                   approach of systematically reviewing work operations, identifying risks,
                   and establishing controls to avoid accidents and work-related illnesses.
                   The reasons cited for low levels of employer involvement in safety and
                   health activities range from insufficient economic incentives to lack of
                   employer knowledge about 06~~ and its regulations. Most workers have
                   little involvement in workplace safety and health other than complying
                   with rules designed to protect workers, such as wearing personal protec-
                   tive equipment. For example, the act, in contrast with legislation author-
                   izing safety and health programs in the states of Oregon and
                   Washington, does not require employers to consider workers’ input on
                   safety and health.

                   In addition, OSHA inspectors believe workers should be more involved in
                   some activities now available to them. Fifty-nine percent of the inspec-
                   tors said workers should be more involved in requesting an 06~~ inspec-
                   tion; 66 percent, in accompanying inspectors as they walk about (called

                   Page 43                    GAO/HRDM86BR    Occupational   Safety   and Health   Options
                        e             the Role0of Employem

                        walkarounds) during inspections; and 70 percent, in participating in set-
                        tlement discussions.

                        According to OSHA’SField Operations Manual, inspectors should ensure
                        worker representatives are afforded an opportunity to participate in
                        inspectors’ walkarounds. However, in fiscal year 1989, only about 17
                        percent of all OSHAwalkarounds included worker representatives. In
                        unionized worksites, 40 percent of the walkarounds included worker
                        representatives. In nonunion worksites, the participation was only about
                        4 percent. In a case in which a worker representative does not accom-
                        pany the inspector, the inspector is required by law to consult with a
                        reasonable number of workers concerning matters of health and safety
                        in the workplace. It is difficult to obtain worker representatives at non-
                        union worksites, OSHAofficials said, to accompany inspectors. This is
                        also true for participating in settlement discussions.

                        One reason for workers’ lack of involvement may be their fear of
                        reprisal from employers. Recent GAO testimony pointed out that inspec-
                        tors believe workers cannot freely exercise their rights without fear of
                        reprisal.* For example, about one-fourth (26 percent) of the inspectors
                        said workers have little or no protection from employer reprisals when
                        they report violations to 0s~~; only 16 percent said workers are well
                        protected. OSHAofficials told us that workers may also be reluctant to
                        participate because the employer does not have to pay the worker for
                        the time devoted to inspection activities.

                        The options presented in this section (see fig. 4.1) are directed toward
Options to Strengthen   greater involvement of employers and workers in improving working
the Roles of            conditions by (1) strengthening CBHA’Seducation and training efforts,
Employers and           (2) requiring worksite safety and health programs and committees, and
                        (3) increasing worker participation in the inspection process. These
Workers                 options are intended to supplement, not replace, OSHA’Senforcement

                        ‘How Well Does OSHA Protect Workers From Reprisal: Inspector Opinions (GAO/T-HRDSO-8,
                        Nov. 16,1989).

                        Page 44                          GAO/HRD-90-66BR    Occupational   Safety   and Health   Options
                                Section 4
                                Strengthening   the R&e   of Employers
                                and Workers

      GAQ Options to Strengthen Roles
          of Employers amd Workers
                l   Shift emphasis to programs
                    that train more people
                l   Require certain employers to
                    *safety and health programs
                    l safety and health committees
                l   Increase worker participation
                    in the inspection prcess

Option to Improve               OSHA  could provide more education and training services. Providing
Education and Training          more funds for compliance assistance activities would be one way to
                                take care of the need, but it is unlikely that substantially more funds
                                will be available. An alternative way is to make the available funds go
                                further by putting greater emphasis on programs that reach more
                                people directly.

Option 12: Shiftr Emphasis to   OSHA could allocate less of its funds to costly programs that are more
Programs That Train More        costly per trainee and more to programs that are less costly per trainee,
People                          thus reaching more people. OSHA'S most costly program, per trainee, is

                                Page 46                              GAO/HRD-90-66BR   Occupational   Safety   and Health Options
                                Se&on 4
                                Strengthening   the Boles of Employers
                                and Workers

                                also the one on which most of its education and training funds are
                                spent-the consultation program. (In every year since 1982, OSHA has
                                spent at least 70 percent of its education and training funds on this pro-
                                gram.) In 1988, the average cost to OSHAfor the consultation program
                                was about $772 per visit. In contrast, the New Directions Program cost
                                OSHA about $50 per worker or employer trained in 1988, according to
                                information OSHA gave us. OSHA has been phasing out the New Directions
                                Program-the number of grantees funded peaked at 156 in 1980, and
                                only 28 grants were awarded in fiscal year 1989-but it could reinstate
                                that program or initiate new ones with a low cost per employer or
                                worker trained.2

                                In considering a shift from one program to another, however, it is neces-
                                sary to note fundamental differences in the approach of each. The con-
                                sultation program provides site-specific comprehensive training to
                                employers and can be used to train workers. OSHAofficials also noted it
                                is the only program focused on small employers. However, because of
                                their confidentiality, consultation reports provide no information to
                                other employers about safety and health concerns, The New Directions
                                Program provides general, rather than site-specific, information about
                                safety and health problems. It makes grants to labor and employer
                                associations for members’ training, which may include conducting work-
                                shops or distributing health and safety literature. The grants are
                                intended to stimulate the creation of new, self-supporting education and
                                training programs.

Options to Encourage            Options to encourage employers and workers to reduce workplace
Employers and Workers to        hazards include (1) requiring certain employers to have safety and
                                health programs, (2) requiring certain employers to have safety and
Identify and Correct            health committees, and (3) increasing worker participation in the OSHA
Workplace Hazards               inspection process.

Option 13: Require Certain      OSHA  could require certain high-risk employers to develop safety and
EZmployers to Have Safety and   health programs, as defined by OSHAin recently issued voluntary
Health Programs                 guidelines3

                                “It has, for example, announced a new training and education program, the Targeted Training Grant
                                Program, to focus on specific safety and health educational needs. However, the announced funding
                  Y             of $340,000 will make it substantially smaller than other training initiatives.
                                “The guidelines outline four principal elements of effective safety and health management: (1) man-
                                agement commitment and worker involvement, (2) worksite analysis, (3) hazard prevention and con-
                                trol, and (4) safety and health training.

                                Page 46                              GAO/HRDM-fMBR       Occupational   Safety   and Health Options
Section 4
Strengthening   the Roles of Employers
and Workers

In recent years, OSHA has noted the relationship between superior man-
agement of safety and health programs-which        address all safety and
health hazards whether or not covered by OSHAstandards-and          the low
incidence and severity of worker injuries. Consequently, OSHA has two
programs that encourage employers to voluntarily develop comprehen-
sive safety and health programs-the     consultation program and the vol-
untary protection program. OSHA data for fiscal year 1989 indicate that
the consultation program, which is targeted specifically to small
employers, provided technical assistance to over 21,000 small
employers. The voluntary protection program recognizes employers who
have developed a comprehensive safety and health program and who
have injury rates considerably below their industries’ average. As of
September 1989,64 employers had been recognized by OSHA.

Although OSHA has encouraged voluntary safety and health programs,
most of the people we interviewed believe that OSHA should issue a stan-
dard making such programs mandatory for certain groups of employers.
An overwhelming number of all inspectors (90 percent) said that repeat
violators of OSHA standards and employers in high-hazard industries
should be required to have safety and health programs. In addition,
about 63 percent of the inspectors supported the idea of requiring such
programs for all employers, regardless of industry type or reported
numbers of injuries and illnesses. There already exists a standard
requiring employers to have safety and health programs in the construc-
tion industry, and about half of the OSHAinspectors who had knowledge
about the subject believe that this standard has at least “moderately
improved” safety and health in the construction industry.

The experiences of the state-operated safety and health programs in
Washington and California support the feasibility of requiring these pro-
grams. The state of Washington requires all employers, regardless of
size, to maintain a written accident-prevention plan. One Washington
program official believes that the program helps prevent workplace
accidents by getting both employers and workers more involved. In
1989, California passed legislation requiring all employers to establish,
implement, and maintain written injury prevention programs. This
action was based, in part, on experience with a voluntary self-inspection
pilot program, begun in 1979, at large construction sites. Under this pro-
gram, labor and management agreed to set up joint safety committees
and worksite safety programs. A 1983 study summarized the results of
this program at six large construction sites. At all the sites, accident fre-
quency rates appeared to be much lower than the industry average. At
four sites, injury incidence rates were also lower than for comparable

Page 47                              GAO/HRD99-96BR   Occupational   Safety   and Health   Options
                               SectIon 4
                               Strengthening   the Role8 of Employem
                               and Workera

                               company projects. No major accidents or deaths were reported at any of
                               the project sites. One company reported savings of $2.4 million through
                               accident prevention. Although the study did not estimate the cost sav-
                               ings to the state, it did report that some costs-such as the cost of cita-
                               tions, appeals, and legal actions-were completely eliminated.

                               Since December 1988, in Oregon, state workers’ compensation insurers
                               have been required to provide free consultation services to employers.
                               Under the state’s insurer consultation rules, both insurers and self-
                               insured employers are required to establish and help carry out loss-
                               prevention services so that employers can improve their health and
                               safety programs and reduce on-the-job injuries and illnesses. Little infor-
                               mation is yet available about the impact of these activities on safety and

                               In response to OSHA’Srequest for comments on its proposed voluntary
                               safety and health management guidelines, most of the respondents
                               expressed the belief that the guidelines described policies, procedures,
                               and practices that are essential to worker safety and health protection
                               but that can be met by a variety of methods. Most respondents, as well
                               as OSHA, said that a significant number of worksites, particularly small-
                               and medium-sized worksites, often lack the professional resources to
                               develop adequate programs on their own.

                               Critics are also concerned about the cost of such programs. Cost would
                               depend on many variables, such as the hazardous conditions of the
                               workplace and the number of workers involved. We did not do a cost
                               analysis of this option. Nevertheless, if OSHAdetermines that these pro-
                               grams are too costly, it may want to require plans only for those
                               employers with high injury and illness rates.

Option 14: Require Certain     OSHA could require all employers, or certain groups of employers, to
Employers to Have Safety and   have joint labor-management committees as a way to resolve job safety
Health Committees              and health issues. Such committees are mandated in two US. states and
                               in some localities in at least five other countries.4 Committees can be
                               used to investigate worksite accidents and to conduct regular inspec-
                               tions. They also can be used to settle safety and health disputes and
                               provide input for management decisions about safety and health. In
                               some countries, these committees also can investigate and abate haz-
                               ardous situations. In the United States, one state (Washington) requires
                               these committees in all worksites with 11 or more workers; Oregon

                               4Australia, Austria, Canada, the Federal Republic of Germany, and Sweden.

                               Page 48                             GAO/HRD9O-tM3BROccupational
Section 4
Strengthenfng   the Roles of Employers
and Workers

requires them in worksites with 10 or more workers and high levels of
injuries and illnesses.

Safety and health committees are also provided for in almost half of all
union contracts in this country. They exist, in various forms, in non-
union worksites as well.

Joint labor-management safety and health committees could encourage
local problem-solving and prevention activities, thus decreasing the reli-
ance on OSHA’S limited inspection force alone to seek out and order
abatement of all worksite hazards. In addition, a state safety and health
program official in Washington asserted, examining the minutes of
safety committee meetings and talking with committee members helped
inspectors conduct inspections; in particular, it gave inspectors informa-
tion about the employer’s commitment to worksite safety.

Granting workers the right to participate in decisions affecting job
safety and health could benefit both employers and workers. Without
such committees, when workers-especially      those in non-union work-
places-spot worksite hazards, they have no structure in place to sup-
port them if they report the hazards to employers. Reporting hazardous
work conditions to an on-site safety and health committee could more
fully and immediately take advantage of worker knowledge than would
reporting the hazard to OSHA and waiting for an inspection to be done if
OSHA thinks a problem exists. If the employer does not abate the hazard,
the worker would still have the option of requesting an inspection from

Employers could also benefit from having workers report complaints to
the committee since it would be a less adversarial action than requesting
an OSHA inspection. Moreover, employers would have a forum from
which they could sell their safety and health philosophy. Opening lines
of communication may increase participation in safety and health, pro-
viding both an opportunity for an employer to use its expertise as well
as increasing the role of workers in overseeing their own day-to-day
safety practices.

The option of mandating joint labor-management safety and health com-
mittees has received mixed support from both employer groups and
labor. For example, the AFL-CIO Standing Committee on Safety and Occu-
pational Health recommends mandated worksite safety programs that
would include provisions for joint committees. Some employer repre-
sentatives we interviewed also supported the committee idea in theory.

Page 49                              GAO/HRD-9086BR   Occupational   Safety and Health   Options
                                 Section 4
                                 Strengthentng   the Roles of Employem
                                 and Workera

                                 However, most of them oppose making such committees mandatory
                                 rather than voluntary.

                                 Management is often cautious about giving up any traditional manage-
                                 ment prerogatives. Unions are often concerned about incurring potential
                                 liabilities if some of its members are empowered to carry out safety and
                                 health tasks that are the responsibility of management.

                                 OSHA   officials believe establishing mandated joint committees would be
                                 difficult in nonunion worksites because of the difficulty in determining
                                 who will represent workers. According to a state official, however,
                                 requiring joint committees at nonunion worksites has not been a
                                 problem in Washington’s program. The state requires that the worker
                                 representatives be elected directly by the workers, regardless of
                                 whether the worksite is union or nonunion.

Option 16: Increase Worker       OSHA   could encourage increased worker involvement in osnAcompliance
Participation in the OSHA        activities in order to improve the identification and abatement of
Inspection Process               hazards in the workplace. Ways to accomplish this include (1) having
                                 more worker representatives accompanying inspectors during
                                 walkarounds, (2) increasing worker involvement in settlement negotia-
                                 tions or allowing them to contest settlement agreements (legislative
                                 changes would be needed), and (3) involving workers in verifying
                                 hazard abatement.

Option 16a: Involve Workers in   OSHA  could do more to include worker representation in the
walkarouncls                     walkarounds. Even though the Field Operations Manual stresses the
                                 importance of workers’ involvement, OSHA program officials told us that
                                 in practice inspectors have not included workers in many walkarounds
                                 at nonunion worksites.

                                 One reason for the limited involvement of nonunion workers in
                                 walkarounds may be that the Occupational Safety and Health Act
                                 allows for the participation of worker representatives in walkarounds
                                 undertaken by OSHA,but it does not mandate that workers be compen-
                                 sated for time spent accompanying an OSHA inspector during
                                 walkarounds. Some unions have bargained for walkaround pay or have
                                 elected to compensate members who participate in walkarounds. How-
                                 ever, in nonunionized workplaces, workers may not be afforded the
                                 same benefits. Mandating walkaround pay would ensure that all

                                 “Although it could be difficult for an inspector to decide who should accompany him/her on the
                                 inspection, the Field Operations Manual already provides some guidance on such situations, and more
                                 could be developed.

                                 Page I50                            GA0/IZItD9086BR      Occupational   Safety and Health Options
                                Section 4
                                Strengthening   the Boles of Employers
                                and Workers

                                workers are given the same opportunity to exercise the right to accom-
                                pany 06~~ inspectors during walkarounds, without the fear that their
                                paychecks will be reduced. In 1977, the Secretary of Labor stressed the
                                importance of having walkaround pay by saying that withholding it
                                “[was] inherently destructive of the workers’ right to participate in the
                                walkaround and, consequently, impedes the free flow of information
                                between workers and representatives of the Secretary which is so crit-
                                ical to effective enforcement of the act.”

                                Even though a 1978 court decision established that it is within the
                                agency’s authority to promulgate one,6 OSHA currently does not have a
                                rule on walkaround pay. If this option is to be implemented, legislative
                                action may be needed to require OSHAto exercise this authority. Further-
                                more, the issue of compensating workers for participation in the inspec-
                                tion process may involve more than simply involvement in the
                                walkaround itself. There are other activities in which workers may
                                engage, such as informal OSHA conferences or attendance at safety and
                                health committee meetings, for which compensation might also be

Option 16b: Increase Workers’   OSHA  could take steps to more often include workers’ representatives in
Participation in Settlement     the settlement negotiations with employers, OSHA asserts that workers
Negotiations                    have the right to be present during these negotiations, but acknowledges
                                limited worker involvement in nonunion workplaces.

                                Including workers’ representatives in discussions would give OSHA a
                                viewpoint to balance that of the employers. It would give CXWAinforma-
                                tion on (1) workers’ views on the appropriateness of withdrawing the
                                citations or lowering penalties and (2) the feasibility and adequacy of
                                the abatement agreements being reached. OSHRC has recognized that
                                workers or their representatives have the right to be heard concerning
                                the objectives of settlement agreement.

                                The possible disadvantage of increasing worker participation in settle-
                                ment negotiations between OSHAand employers is the presence of a
                                potentially hostile third party. This might limit OSHA'S ability to exercise
                                practical discretion when determining the final action to be taken
                                against an employer. The objections of workers to settlement agree-
                                ments may further involve the agency in litigation against employers,
                                which would delay timely remedies to potentially hazardous or fatal
                                safety and health violations.

                                fiChamberofCommerceoftheUnitedStatesv.0SHA,466        F.Supp. lO(D.D.C.,1978).

                                Page 5 1                             GAO/HRB90-66BR   Occupational   Safety and Health Options
                                If OSHAis unable to obtain adequate worker participation, for whatever
                                reason, in settlement negotiations, the Congressmay chooseto amend
                                the act. Workers could be allowed to appeal the final settlement to an
                                administrative law judge for review when there is (1) evidencethat the
                                settlement is not serving the purpose of protecting the health and safety
                                of workers or (2) no adequate mechanism for monitoring compliance
                                with the terms of an agreement.However, it should be recognizedthat
                                providing this worker right could delay hazard abatement while the set-
                                tlement is being contested.
Option 16~ Involve Workers in   OSHA  could establish a mechanismto use workers as a sourceof informa-
Verifying Hazard Abatement      tion about whether employers have corrected the cited hazards. One
                                way to do this would be to require employers to post at the worksite the
                                information they provide to 06~~about how and when they abated the
                                hazards. This would parallel the current requirement that the employer
                                post the citation notice. Given this information, if workers’ observations
                                are inconsistent with the employers’ assertions,workers could notify

                                P8ge 52                    GAO/HRlNJ@WBR   Occupatiorul   Safety   and Health   options

Page 53       GAO/-BB   Omumtionai   Safety   and Health OptIona
Appendix I


              We collected information about how the federal government protects
Overview      workers from occupational safety and health hazards, perceived
              problems with these programs, and practical options to improve them.
              We collected this information through (1) interviews with safety and
              health experts outside the government, as well as federal and state pro-
              gram administrators; (2) a mail questionnaire to OSHAcompliance
              officers and their supervisors; (3) a review of published articles on
              safety and health; (4) an examination of OSHA operating procedures, doc-
              uments, and performance data; and (6) a review of legislative initiatives
              in the 99th, lOOth, and 1Olst Congress.

              We obtained information from OSHAthrough interviews with headquar-
              ters officials and copies of a questionnaire to those individuals respon-
              sible for doing and supervising inspections1 In commenting on a draft of
              this report, OSHA expressed concern that in relying on a questionnaire
              sent to inspectors and supervisors, we missed an important and
              informed source of information, specifically, regional and area office
              and senior field managers. We did not send the questionnaire to these
              officials or systematically obtain data from them, However, in other
              recent and ongoing GAO reviews, we have talked with OSHAmanagers at
              those levels, and we built on that knowledge in designing and imple-
              menting this review. Moreover, we did interview OSHAofficials in region
              IX to discuss the OSHAenforcement program in California and OSHA’S pol-
              icies and procedures in general.

              For our interviews with 32 safety and health experts outside the gov-
              ernment, we selected people who would provide a good balance of per-
              spectives: 8 from labor,2 9 from management,3 10 from academia, 3 from
              professional organizations, and 2 with state program experience. Sev-
              eral of them had previously held positions in OSHAor NIOSH.

              We met with nine experts in a l-day structured panel discussion. We
              conducted the other interviews individually, primarily using a struc-
              tured interview guide to address areas selected to review. The inter-
              views covered general observations on safety and health in this country;
              then the interviews focused, in turn, on each topic, asking for the

              ‘Questionnaire results will be issued as a separate report in the near future.

              %ive are labor union representatives and three others represent advocacy groups with, primarily, a
              labor perspective.
              “Five were from individual companies; four were from business associations.

              Page 64                               GAO/HRD9O-66BR        Occupational    Safety   and Health   Options
                    Appendix 1

                    problems, if any, the experts saw; what alternatives might be consid-
                    ered; and the advantages and disadvantages of each. We also solicited
                    their opinions on some specific options.

                    We mailed copies of two different questionnaires to OSHAcompliance
                    officers and their supervisors, who are principally responsible for seeing
                    that private employers comply with OSHAsafety and health regulations
                    and standards. (For convenience, we refer to all compliance officers and
                    supervisors jointly as “inspectors.“) We selected a random sample from
                    current OSHAsafety and health officers. All current 0%~ field supervi-
                    sors of safety and health inspectors were also surveyed. The compliance
                    officers and supervisors worked in all 10 of OSHA’Sregions. The two
                    questionnaires were identical except for minor modifications to reflect
                    wording differences because of compliance officers’ and supervisors’
                    different positions and responsibilities.

                    To identify differences between the programs, we also compared OSHA’S
                    operations with approaches used by state-operated safety and health
                    programs. For three state programs-California,    Oregon, and Wash-
                    ington-we obtained performance data, when available, on approaches
                    that OSHAdid not use or that were different from the federal program.
                    We also identified different and additional program elements by the
                    Labor Department’s Mine Safety and Health Administration (MSHA),                          .
                    which protects the nation’s miners.

                    The major factors we considered in selecting options were (1) frequent
                    identification by safety and health experts or in the literature and
                    (2) the extent of evidence we were able to obtain concerning feasibility
                    of the options. We did not analyze the cost-effectiveness of the options.
                    We present the options for congressional and Department of Labor con-
                    sideration in making legislative and administrative changes.

                    We obtained listings from 06~~ identifying all inspectors as of April 12,
Sampling Approach   1989. We divided safety and health officers into separate universes and
for Questionnaire   sampled each individually. Within each regional office we selected a
                    random sample of approximately one-third of all safety officers and
                    one-third of all health officers. Universe and sample sizes by type of
                    inspector are shown in table I. 1.

                    Page 55                    GAO/HRD9086BR   Occupational   safety   and Health   Options
                                       Appendix I

Table 1.1:Total Inspectors and Total
Sampled by Type                        lnroector                                         Total         Samole              Percent
                                       Safety officers                                     552                184                 33.3
                                       Health officers                                     415                138                 33.3
                                       Supervisors                                         155                155                100.0
                                       Total                                            1.122                 477                 42.5

                                       We mailed a questionnaire to each inspector in our sample and to all
                                       supervisors; we sent one follow-up mailing to those who initially did not
                                       respond. Eighty-one percent of those to whom we sent questionnaires

                                       For the two questionnaires, we were only interested in surveying com-
                                       pliance officers and supervisors who actually did or supervised inspec-
                                       tions. OSHA'S listings did not identify workers by occupation; thus, we
                                       were not able to restrict our sample cases only to inspection staff. We,
                                       therefore, used a screening question in our questionnaire to select
                                       respondents who were either doing or directly supervising inspections.
                                       We deleted from our sample those who were not. The number and per-
                                       centage considered appropriate for our analysis are shown in table 1.2.

Table 1.2: Respondent8 Doing (or
Supervlslng) lnrpections by Sampled                                                       Sample                Respondents
Qroup                                                                                respondin                doing inspections
                                       Group               Sample Respondents        (in percent 7            Number Percent
                                       Safety officers         184             146           79.3                   124           84.9
                                       Health officers         138             113           81.9                    95           84.1
                                       Supervisors             155             127           81.9                   117           92.1
                                       Total                   477             386           80.9                   336-----      87.0

                                       Questionnaire results are projectable to an estimated universe of compli-
                                       ance officers and supervisors who were doing inspections and who
                                       would have responded had we sent the questionnaire to everyone. The
                                       size of the universe to which results can be projected after adjustments
                                       for both the response rate and the rate of respondents’ doing inspections
                                       are shown in table 1.3.

                                       Page 56                       GAO/I3RD9O80BROccupational      Safety   and Health       Options
                                          AQW*       1

Table 1.3: Universe to Which
Questionnaire Results Can Be Projected:                                                                            Res ondents
Respondent Universe Doing Inspections                                                  Respondents              doing   PIISpeCtiOnS
                                          aroup                      Universe          Rate Universe              Rate     Universe
                                          Safety officers                  552         79.3             438        84.9           372
                                          Health officers                  415         ai .9            340        84.1           286
                                          Supervisors                      155         ai .9            127        92.1           117
                                          Total                          1.122                          905                       775

                                          The one instance in which we project our questionnaire results without
                                          adjusting the universe for the respondent rate is in estimating the
                                          number of compliance officers doing inspections. We then assume that
                                          the percentage of nonrespondents conducting inspections was the same
                                          as the percentage of respondents-84.9     percent for safety and 84.1 per-
                                          cent for health. As a result, we estimated that 818 compliance officers
                                          were doing inspections (662 x .849 + 416 x .841). The sampling error is
                                          plus or minus 36.

                                          Estimates derived from a statistical sample are subject to a certain
                                          amount of sampling error: the possible error that arises because of
                                          taking a sample rather than surveying the entire population. Sampling
                                          error, also called a precision of the estimate, is given as a plus or minus
                                          value around the estimate. The sampling errors for percentages reported
                                          did not exceed plus or minus 7 percent for any estimate.

                                          Page 57                     GAO/HRD-9086BR     Occupational     Safety and Health Options
Appendix II

Enforcement Procedures

                             OSHA’S   enforcement program primarily consists of the following

                         l scheduling and conducting inspections,
                         l issuing citations and assessing penalties, and
                         . verifying abatement.

                             Every worksite covered by the act is subject to inspection by OSHA.An
Scheduling Inspections       annual rider to OSHAappropriations, however, generally exempts from
                             inspection those employers with fewer than 11 workers and average
                             injury rates below the national average.1 O~HAadministrative practice
                             has been to extend this exemption from programmed inspection to all
                             small employers regardless of their average injury rates.

                             Inspections are categorized as safety or health inspections. In fiscal year
                             1989,81 percent of the inspections were safety inspections. Inspections
                             can also be categorized as either programmed or unprogrammed. Unpro-
                             grammed inspections include those that receive priority because of
                             (1) an alleged imminent danger situation, (2) an accident involving a
                             fatality or catastrophe, (3) a complaint alleging serious violations that
                             threaten physical harm, or (4) a referral from other officials, agencies,
                             or the media, describing a potential, serious hazard. Thirty-eight percent
                             of OSHA’Sunprogrammed inspections in fiscal year 1989 resulted from
                             worker complaints; unprogrammed inspections accounted for about 67
                             percent of all osm’s inspections.

                             Programmed, or targeted, inspections are those that are based on a neu-
                             tral system rather than specific information about that employer. OSHA
                             has separate targeting procedures for three major inspection categories:
                             safety inspections in high-hazard manufacturing industries, safety
                             inspections in the construction industry, and health inspections in high-
                             hazard industries. Most of the programmed inspections are done in high-
                             hazard manufacturing industries or construction.

                             Under the current targeting procedure for high-hazard manufacturing
                             industries, each OSHAarea office develops its own annual inspection pro-
                             grams based on (1) an OSHA-provided ranking of high-hazard manufac-
                             turing industries by industry lost workday injury (LWDI)rate for the
                             state and (2) a listing of high-hazard worksites in that area, in order of

                             ‘They are, however, subject to inspections based on an unsolicited formal complaint or a reported
                             catastrophe (an accident in which five or more workers are hospitalized) or fatality.

                             Page 58                              GAO/HRD-WBR          Occupational   Safety and Health Option
              AQQendiX II
              Enforcement   Procedures

              their industry LWDI rates. Industry LWDI rates are based on the results of
              a BIS annual occupational safety and health survey, and OSHAderives its
              listing of companies from a Dun and Bradstreet file.

              OSHA'S primary source for identifying    construction sites is the Dodge
              Reports, a commercial publication identifying planned construction
              starts. A list of construction sites randomly selected from these reports
              is provided to area offices monthly by the Tennessee Construction
              Resource Analysis Department at the University of Tennessee.

              When OSHA compliance officers inspect a construction site, they inspect
              all contractors and subcontractors active at the site-with    each con-
              tractor recorded as one inspection in OSHA'S records. If a site is inactive
              when visited by the compliance officer, it can be rescheduled in the next
              year’s inspection cycle.

              As it does for high-hazard safety inspections, OSHAannually provides
              each area office with a ranked listing of industries for health inspections
              and a listing of area worksites in each industry. For the health listings,
              however, industries are ranked according to the average number of
              serious health violations cited per OSHAhealth inspection in that
              industry. The industry ranking is a national one; therefore, all area
              offices have the same industry priorities.

              From these listings, the area office decides on health inspection cycles
              and conducts inspections using a procedure similar to that for sched-
              uling industry safety inspections. In recent years, OSHA’Shealth inspec-
              tion program has been increasingly driven by complaints, leaving fewer
              resources for targeted inspections. Because an area office is required to
              complete an inspection cycle once it is started, some area offices, in
              1988, were still working on their 1985 or 1986 inspection cycles and
              completing only a handful of targeted health inspections each year.

              As shown in figure II. 1, the worksite inspection begins with an opening
Conducting    conference in which the inspector explains the reason the worksite was
Inspections   selected, the purpose of the visit, and the scope of the inspection. After
              the opening conference, the inspector reviews the injury and illness log
              and begins a walkaround of the work areas for compliance with OSHA
              standards. While inspecting, the inspector observes worksite conditions,
          Y   consults with workers, and examines records. Any unsafe or
              unhealthful working conditions are pointed out to the employer and

              Page 59                     GAO/HRINO86BR   Occupational   Safety and Health Options
                                             Appendix II
                                             Euforcement        Procedures

Flgure 1.1: OSHA Inspection and Citation Resolution Process
                                      Opening Conference
                                    .--    - ,-

                                    Records Review and
                                    Walkaround Inspection

                                     Closing Conference

           I     NoCitatIon
                                                                 I         Citation

                                                                      Citation Revlewed by
                                                                            Area Olflce

                                                                                             I                    1

                                                                I                                    I

                                             %stance-by-instance    citations are approved by regional administrator      and OSHA headquarters.     Other
                                             citations are approved by area office director.

                                             Page 00                                         GAO/BIRD-9046BR   Occupational   Safety   and Health   Options
                        Appendix II
                        Enforcement   Procedures

                        worker representatives. After the inspection, a closing conference is
                        held. The inspector discusses with the employer the unsafe or
                        unhealthful conditions observed and indicates the apparent viola-
                        tions, correction procedures, and interim methods of control.

                        A citation is issued when safety or health hazards have been identified
Issuing Citations and   during an inspection. The citation describes the standard violated, pro-
Assessing Penalties     poses the penalties (if any), and establishes the date by which the
                        employer must abate (eliminate) the safety or health hazard.

                        An employer who disagrees with any aspect of the citation can request
                        an informal settlement conference with the OSHA area office director.
                        Issues discussed in the settlement conference include such matters as
                        the type of violation (for example, whether it was serious or nonser-
                        ious), the amount of the penalty, the abatement actions to be taken, and
                        the date by which abatement must occur. If a settlement is reached, an
                        informal settlement agreement is signed.

                        If an agreement cannot be reached at the informal settlement confer-
                        ence, the employer can file a notice of contest within 15 days of the
                        issuance of the citation. Employers can contest a violation if they
                        believe it did not occur, the violation was less serious than cited, the
                        abatement period is unreasonable, or the penalty was excessive. The
                        Occupational Safety and Health Review Commission (OSHRC) will hear
                        the case and render a decision.

                        Under certain circumstances, OSHA can refer the case to the Justice
                        Department for criminal prosecution. The act allows criminal penalties
                        (1) if an employer willfully violates an OSHA standard, resulting in a
                        worker’s death, or knowingly makes false representation and (2) if a
                        person knowingly tells an employer that an inspection is scheduled
                        without authority from the Secretary or his designees.”

                        Abatement is the elimination of an identified hazard. It can be accom-
Verifying Abatement     plished in a variety of ways, including (1) changes in the facilities,
                        machinery, materials, or work practices used or (2) addition of personal
                        protective equipment for workers. Sometimes employers will abate a
           *            hazard as soon as it is pointed out by an inspector; employers, however,

                        “The maximum penalty is $10,000 or imprisonment for 6 months or both. But telling an employer
                        about a pending inspection carries a maximum fine of $1,000 or imprisonment for 6 months or both.

                        Page 61                             GAO/HRD-9OSBBR       Occupational   Safety and Health Options
Appendix II
Enforcement   Procedures

are generally allowed additional time to abate a hazard. The citation
specifies the date by which an employer must abate a hazard and inform
the area office of that fact.

If the employer contests the citation, abatement is further delayed until
resolution of the contest in a formal settlement or a decision of OSHRC.If
an employer contests the penalty or only part of the citation, all uncon-
tested items must still be abated by the dates indicated on the citation
and the corresponding penalties paid within 16 working days of notifi-
cation However, employers need not abate hazards related to contested
sections of the citation until a final decision is made.

The procedures for obtaining abatement in imminent danger situations
are somewhat different. Imminent danger is defined as

“any conditions or practices in any place of employment which are such that a
danger exists which could reasonably be expected to cause death or serious physical
harm immediately or before the imminence of such danger can be eliminated
through enforcement procedures otherwise provided by this act.”

Workers can identify potential imminent danger situations and request
an inspection or the inspector could note such dangers during the

As soon as the inspector concludes that conditions or practices exist that
constitute an imminent danger, the employer is advised. It is the duty of
the inspector at the site of an imminent danger situation to encourage
the employer to do whatever is possible to eliminate the danger.

If the employer either cannot or does not voluntarily eliminate the
hazard, the inspector notifies the area director, who decides whether to
post on site a Notice of Alleged Imminent Danger. This notice does not
constitute a citation of alleged violation or a notice of proposed penalty.
It is only a notice that an imminent danger is believed to exist and that
the Secretary of Labor will be seeking a court order to restrain the
employer from permitting workers to work in the area of the danger
until it is eliminated.

The regional administrator is notified and, in turn, ensures that the OSHA
director of field programs is notified before a temporary restraining
order is sought. According to OSHAofficials, four restraining orders were
obtained between fiscal years 1984 and 1988.

Page 62                        GAO/HRD40436BR   Occupational   Safety   and Health   Options
Appendix II
Enforcement   Procedures

OSHA has several methods for confirming that abatement has taken
place. Currently, the method used most often is written assurance from
the employer.

Page 63                    GAO/BRD-9086BB   Occupational   Safety   and Health   Options
Appendix III                                                                                               ,

Roles of Employers and Workers

                      Each employer is required, under the act, to provide workers with
Employers Are         employment that is free from recognized hazards that are causing or
Expected to Provide   that are likely to cause serious physical harm or death.
Wbkplaces Free From   Some safety and health standards set by OSHA provide information to
Safety and Health     employers about how they are expected to meet that requirement. Such
Hazards               standards encompass many hazards in many industries, and are not lim-
                      ited to substances alone. They apply to work processes, equipment, and
                      training requirements for certain categories of workers as well as to haz-
                      ardous chemicals. Employers are expected to be knowledgeable about,
                      and comply with, over 700 federal OSHA standards.

                      In addition to specific standards, OSHAalso issues voluntary guidelines
                      for employers. For example, in January 1989, the agency issued volun-
                      tary guidelines, encouraging employers to establish safety and health
                      programs. Other organizations’ guidelines, such as the Centers for Dis-
                      ease Control’s recommendations for protection against bloodborne dis-
                      eases, have also informed employers about procedures to protect
                      workers. Some of these guidelines have been used by OSHA as evidence
                      that employers who operate counter to the guidelines are failing in their
                      general duty to maintain a safe workplace-and     thus OSHA has cited
                      them, using the “general duty” clause of the act.

                      OSHA has also initiated programs to provide recognition for employers
                      who maintain exemplary safety and health programs. These programs,
                      known as voluntary protection programs, were adopted by OSHAin 1982.
                      The purpose of these programs is to (1) recognize qualified employers
                      whose safety and health programs far exceed federal requirements and
                      (2) encourage more employers to provide outstanding worker protection.
                      The safety and health programs include management systems for
                      preventing or controlling occupational hazards; these programs provide
                      the best feasible protection at worksites, even beyond OSHAstandards.
                      Participants are removed from OSHA’Sprogrammed inspections, thus
                      freeing OSHA'S inspection resources to be used more effectively. In fiscal
                      year 1989,64 worksites participated in the program.

                      The voluntary protection programs have shown that a more cooperative
                      approach to worker safety and health between government, industry,
                      and labor can be achieved. OSHA has recognized that compliance with its
                      standards cannot accomplish all of the goals established by the act, nor
                      will the standards cover all unsafe conditions in the workplace. These

                      Page 04                    GAO/HRD-9086BR   Occupational   Safety   and Health   Options
                         Appendix Ill
                         lblee of Employem   and Workers

                         programs are based on the premise that having a comprehensive volun-
                         tary safety and health program that operates effectively can provide
                         increased worker protection with fewer agency resources.

                         Workers are expected to comply with procedures established to protect
Workers Are Expected     them. To assist them, employers are required to inform workers of the
to Follow Procedures     chemical hazards to which they may be exposed at work and what pre-
Established to Protect   cautions they should take. OSHAalso requires employers to (1) post a
                         notice informing workers of their rights under the act and (2) provide
Them                     workers access to records on injuries and illnesses that have occurred in
                         the workplace. Workers can also request information on any substance
                         from NIOSH.

                         The act provides that workers can inform OSHAwhen employers are not
                         providing a safe workplace. Workers have the right to be represented in
                         OSHA walkarounds, to report violations to the compliance officer during
                         an inspection, and to request an inspection when they believe that an
                         imminent danger or a violation of a safety or health standard that
                         threatens physical harm exists.

                         Section 1 l(c) of the act protects workers against employer reprisals for
                         exercising the above rights or any other rights included in the act. In
                         order to carry out the mandate to protect workers against employer
                         reprisals, OSHA operates a discrimination complaint investigation pro-
                         gram. Through this program, OSHA investigators examine complaints of
                         employer reprisals and determine whether or not to pursue complaints
                         through the courts.

                         The Congress acknowledged the need for workers and employers to be
Education and            knowledgeable about workplace hazards in order to achieve the objec-
Training                 tives of the Occupational Safety and Health Act, and 06~~ provides edu-
                         cation and training for workers and employers through both agency-
                         funded activities and employer-funded activities. Directly funded activi-
                         ties include the employer consultation program, the OSHATraining Insti-
                         tute, the New Directions Grant Program, and publications. In addition to
                         these directly funded activities, there are more than 100 @HA standards
                         and guidelines that mandate or recommend minimum levels of training
                         to be provided by employers for particular categories of workers. 06~~
                         also expects education and training to be a component of its other activi-
                         ties, such as conducting inspections.

                         Page 05                           GAO/BBD-9086BR   Occupational   Safety and Health Options
                          Appendix III
                          Roles of Employers   and Workers

Consultation              Education and training directly funded by OSHA are aimed primarily
                          towards employers. OSHA'S primary emphasis in education and training
                          has been on the Employer Consultation Program, which, in each year
                          since 1982, received at least 70 percent of all the education and training
                          funds. The funds devoted to this program alone constitute approxi-
                          mately 10 percent of OSHA'S overall budget for fiscal year 1989.

                          Employers who want help in identifying and controlling safety and
                          health hazards may obtain free consultation assistance under the Con-
                          sultation Program, which is funded by OSHA and the states. The program
                          is designed to assist smaller businesses in high-hazard industries or with
                          especially hazardous operations. The proportion of federal funds to
                          state funds varies from state to state, depending on what type of agree-
                          ment the states have with federal OSHA. In fiscal year 1988,29 states
                          and U.S. jurisdictions provided consultation services to employers
                          through agreements in which 90 percent of the program’s funding comes
                          from federal OSHA and 10 percent comes from the states; 23 states pro-
                          vided consultation services in which federal OSHAfunds 60 percent of
                          the cost of the service and the states fund 50 percent.

                          The program is provided to employers on a confidential basis. No cita-
                          tions are issued or penalties proposed for hazards identified by a con-
                          sultant. An employer is, however, obligated to correct serious job safety
                          and health hazards promptly. OSHAdoes not require employers to pro-
                          vide workers with information about hazards identified by a consultant
                          or about recommended abatement measures.

OSHA Training Institute   The OSHA Training Institute provides short-term basic and advanced
                          training and education in occupational safety and health for the public
                          and private sectors. Training programs are designed to (1) improve the
                          skill and knowledge of personnel engaged in work related to the act and
                          (2) train and educate employers and workers in the recognition, avoid-
                          ance, and prevention of unsafe and unhealthful working conditions.
                          During fiscal year 1988, the institute trained 7,842 people. About 16
                          percent of those attending courses at the institute in 1988 were private
                          sector employers and employee representatives.

New Directions Grants     New Directions, the agency’s training and education grant program,
                          makes funds available to nonprofit labor and employer organizations

                          Page 60                            GAO/HRlMO433BR   Occupational   Safety   and Health   Options
                         Appendix III
                         Roles of Employers   and Workers

                         that want to provide job safety and health training to their member-
                         ships. The grants are designed to develop job safety and health exper-
                         tise in recipient organizations. Generally, grantees become independent
                         of federal funding after a 3-year to 5-year developmental period.

                         OSHA is able to selectively target certain groups of workers and
                         employers through New Directions grants. Currently, OSHA is not
                         awarding new grants; targeted groups have, therefore, been limited to
                         those groups that have already been awarded grants and are finishing
                         out their 3-year to 5-year developmental periods.

Mandated Worker          In addition to these formal programs, there are regulations and stan-
Education and Training   dards issued by OSHA that are aimed specifically at increasing the level
                         of knowledge among workers about health and safety hazards. More
                         than 100 of OSHA'S current regulations and standards contain some
                         requirement for training. These include the OSHAAccess to Records regu-
                         lation and the hazard communication standard. The Superfund Amend-
                         ments and Reauthorization Act of 1986, title III, also provides for
                         making workers aware of hazards, In addition, OSHA has issued volun-
                         tary guidelines to assist employers in identifying training needs of

                         The OSHA Access to Records regulation, as revised in July 1978, states
                         that workers have the right to examine the illness and injury logs of
                         employers, as well as summaries of recorded occupational injuries and
                         illnesses in their worksites. Since 1980, workers have also had the right
                         to examine workers’ exposure and medical records. The workers’ right
                         to information also extends to information about toxic substances to
                         which they may be exposed in the workplace.

                         The hazard communication standard, issued first in 1983 and revised in
                         1986 and 1987, requires chemical manufacturers, importers, and distrib-
                         utors of hazardous chemicals to (1) describe known hazards on material
                         safety data sheets (MSDSS), which must be provided to employers to
                         whom chemicals are shipped, (2) label containers of such chemicals, and
                         (3) update the MSDSSwhenever information changes significantly.
                         Employers, in turn, are required to institute programs ensuring that
                         (1) the information provided to them is communicated to workers who
                         handle these chemicals and (2) workers are aware of their right to
                         obtain such information. Employers who must prepare or have available

                         Page 07                            GAO/IllUMJO-66BR   Occupational   Safety   and Health   Options
    Appendix III
    Roles of Employers   and Workers

    MSDSSfor hazardous chemicals in their worksites must also submit chem-
    ical hazard information to state emergency response commissions, local
    emergency planning committees, and local fire departments.

    The Superfund act requires OSHA to issue a standard to provide workers
    engaged in hazardous waste operations with protection at least
    equivalent to that provided by EPA. The standard was mandated to cover
    various areas of worker protection, including site analysis, training,
    medical surveillance, and protective equipment. The final rule, which
    was published on March 6, 1989, and became effective March 6, 1990,
    protects approximately 1.75 million workers who work with toxic
    wastes, including those who respond to hazardous waste spills, such as
    firefighters, police officers, and ambulance and hazardous materials per-
    sonnel. The standard also protects workers who are involved with oper-
    ations at uncontrolled hazardous waste dump sites and workers at waste
    storage, treatment, and disposal facilities.

    Several training requirements are included in the standard. One of these
    is that workers who work in hazardous substance removal operations
    will be required to have at least 40 hours of initial training before
    entering a site and at least 3 days of actual field experience.

    Page 08                            GAO/HRD-9066BR   Occupational   Safety   and Health Options

Appendix IV

Comments From the Department of Labor’

               U.S. Department of Labor                Assistant Secretary for
                                                       OCcupal~onsl  Safety and Health
                                                       Washmglon. u C. 20210

              Mr. Franklin    Frazier
              Director    of Education
                 and Employment Issues
              U.S. General Accounting         Office
              Washington,    D.C.     20548

              Dear   Mr.   Frazier:
              This is in       response to your letter       of May 4 to Secretary      of Labor
              Elizabeth      Dole submitting     for our review and comment the proposed
              report    of   the General Accounting       Office   (GAO) on alternative     ways
              to improve       safety  and health    in the workplace.
              Having worked closely      with your staff       in the two years it has
              taken to complete the study, we wish to commend you on a report
              well done.      GAO has presented     a comprehensive       overview    of the
              problems that Secretary       Dole and I faced as we assumed direction
              of the Occupational     Safety and Health Administration              (OSHA). In
              the past year, as you are aware, there have been significant
              changes in OSHA's operations,         and many new initiatives          are in the
              planning   and developmental      stages.   It is too soon, however, to
              evaluate  the impact of these changes.             GAO's report,     which
              reflects   information   that was current        last summer and thus
              predates  OSHA's current      leadership,   will     provide    a valuable
              baseline   from which we can measure our success.
              GAO    euggests a number of interesting         administrative        and legis-
              lative    solutions     to the problems outlined       in the report,        and
              presents     the advantages     and disadvantages     of each solution,          or
              option.      We have not commented on those options;              all deserve
              careful     review.     I can assure you that the suggestions            for
              administrative        change to the ON-IA program will         receive   our
              serious     attention     in the coming months.
              We welcome the assistance           the report      can provide     in the agency's
              continuing      efforts    to make the national         job safety    and health
              program more effective.           Secretary      Elizabeth      Dole and I are
              committed to whatever changes are necessary                   to improve safety    and
              health    conditions     for America's       workers.      Indeed, we are already
              launched on an ambitious          re-thinking       of OSHA's programs and
              policies.      To assist     us in this effort,         we are seeking ideas and
              suggestions       from all the concerned parties.
              Shortly     after   I assumed office     in October,  a conference    of the
              agency's     senior managers was convened in Miami.           In a departure
              from previous       practice,  representatives     of our important     con-
              stituencies       were invited   to attend.    Our House authorizing
              subcommittee,       the State OSHA programs,      and representatives     of

                           Page 69                             GAO/HRD-90-66BR           Occupational   Safety and Health Options
         Appendix   IV
         CommentsFrom the Department      of Labor

labor,   business,     and public     interest      groups were invited          to join
the agency's     senior managers in brainstorming.              The goal         was to
come up with innovative        solutions       to the challenges     OSHA        faces.
Many months and task forces later,               we have put into effect            some
of the hundred8 of good suggestions               that came out of the           Miami
meeting,   and we are in the process of sorting              out others           for
further   consideration.
In addition    to regular     meetings with our three statutory                advisory
committees,    we have held or are planning            to hold a number of
conferences    with intereeted       and knowledgeable       parties      outside     the
agency.     For example, we met in March of this year with the
Surgeon General and senior officials              of the National       Institute
for Occupational     Safety and Health to determine            how to better
coordinate    our respective      activities      to achieve our common
mission.     On June 21, we will         be meeting with representatives              of
worker compensation       insurance      companies to discuss        issues of
mutual interest.      A conference         with the parties    concerned with
safety    and health  in the petrochemical          industry    is planned for
the Fall.
To ensure the orderly         consideration     of the       many new ideas pour-
ing into us from these sources,             I have set       up a new, internal
decision-making      process.       An agency policy         review board comprised
of OSHA's senior managers now meet8 at least                    once a month to
evaluate    new policy    initiatives       or proposals        for change in
existing    policies    and to recommend options             for my consideration.
It should not surprise    you that there are similarities      between
OSHA’s  own, ongoing self-analysis     of it8 programs and policies
and the analysis   in GAO’s report.     There are also differences.
Our specific   comments, which follow,    address those differences.
Reqularorv      Stratesy
OSHA defines         its regulatory       strategy      somewhat differently        from
GAO. Given the limited              reach of agency inspections,              OSHA relies
to a large extent           on voluntary       compliance      by employers     and
employees.         Ideally,    enforcement        actions,     with appropriate
citations       and penalties,        should be necessary           only when employers
fail     for whatever reason to consider                safety     and health   as an
integral       part of their      responsibilities          to employees.       OSHA
consequently         has developed      a regulatory        strategy     that combines
rigorous       enforcement     with intensive          educational      and assistance
efforts.        Not only does the agency promote training                    and education
through      formal training       and aseistance          programs and the training
requirements         in many OSHA standards,            but training       and education
are integrated          into every major agency activity.

         Page 70                           GAO/HRD-9086BR     Occupational Safety and Health Options
         Appendix   lV
         CommentsFrom the Department         of Labor


The success of OSIiA~8 regulatory                  strategy       depends upon strong
 incentives        for all employers,         inspected        or not, to comply with
the requirements           of the OSH Act.          GAO describes           OSHA's policy         of
 issuing      large dollar       penalties      for particularly            egregious      viola-
tions of the OSH Act, but does not note the significance                                 of that
policy      in maximizing        the impact of a single              inspection.         In
recent years,          under this policy,          OSHA has used the civil               penalty
process to emphasize the seriousness                     of safety        and health      viola-
tions and to multiply              the deterrent        effect      of a single       inspec-
tion.      Since 1986, OSHA has issued approximately                         100 citations         to
approximately          90 employers       for egregious         violatione.         Almost two-
thirds     of these ca8es have been settled                    prior    to a hearing,
thereby       securing     swift     abatement of hazards.              Many of the pres-
ently contested          citations       are close to settlement.                We are
convinced        that this extremely         high settlement            rate is a direct
result     of the business           community's      recognition         of the Depart-
ment's commitment to well-documented                     inspections         and to pursuing
litigation         if necessary.
Nor does GAO note the significance              of OSHAVs corporate          interven-
tion   strategies       as a means of maximizing         the impact of a single
inepection.        In a number of instances,          OSIiA has been able to get
agreement from the parent corporation                of a plant that has been
inspected,      not only to correct       the violations        found on that
inspection,       but also to make similar         corrections      in other plants
where the same violative         conditions      exist.       For example, OSHA's
first    egregious      cases in the poultry       and red meat industries
resulted      in agreement by the parent corporations               to implement
ergonomics      programs in all their        plants.       To date, we have
entered     into 13 corporate-wide        settlement       agreement8 in a number
of industries        including  automobile      and paper manufacturing.
Monitoring      the implementation       of corporate-wide         settlement
agreements is becoming an increasingly                important     part of OSHA's
compliance      program.
OSHA     is considering     other corporate-intervention            strategies.      A
recent example of successful               OSHA intervention     at the corporate
level was the agency's           review,     during an investigation         of employ-
ee complaints,        of employee medical records at the corporate
headquarters       of two asbestos-removal           firms.    OSHA supplemented
this headquarters        paper review with employee interviews.                  The
approach used in these two case8 proved effective                     and efficient.
OSHA was able to accomplish              its objective      of uncovering     and
correcting      serious   violations        of the asbestos standard         without
visiting     the many separate worksites             of these firms.
       ev of OSHA CoIu&&&nce            officers        and Suoervisorq
OSHA believes    that throughout   the report                   GAO places too much
reliance   on the results    of the survey it                   conducted  of 322 OSHA

         Page 71                               GAO/HRD-9986BROccupationalSsfetysndHealthOptiona
        Appendix   IV


 compliance       officer8    and 155 first-line       supervisors.        GAO inter-
viewed senior managers at headquarters,                 but neglected       to tap one
 of the most important          sources of professional         expertise     in the
 agency --OSHA's Regional          Administrators,      Area   Directors,     and other
 senior     field     managers.    All of these individuals          are career
professionals,          some of whom have been with the agency eince its
 inception.         They are the first      source I go to when I need infor-
mation on how the program is working in the field                     or when I seek
 innovative       ideas and suggestions        for improvements.          OSHA's senior
field     managers have a perspective            and breadth of knowledge which
the average compliance           officer    cannot have.
                                 of the PSH
OSHA       would like to expand on the report's                discussion       of the
 impact of the 0% Act.               GAO quotes    a 1985 Office         of Technology
study which points            out a "general      belief     that the presence of
OSHA ha8 increased            manager and worker awarenese of occupational
health       and safety."         As a safety   and health        professional       for most
of my working life,              I have seen firsthand         the dramatic       changes
that have occurred             in the workplace      and in the occupational
safety       and health     community since passage of the Act.                   The vast
majority        of larger      firms now employ at least one safety                and
health       professional,        as do the national       labor     unions.      The number
of industrial          hygienists      in this country       ha8 increased        phenome-
nally,       and OSHA’s own recruiting          Confirms that the demand for
llI.H.'sll      continues     to exceed the supply.           A recent       survey of
safety       and health     specialists      by the Bureau of National             Affairs
revealed        that safety       and health personnel         in the respondents'
organization8          had increased      by nearly      70 percent      since enactment
of the OSHA law in 1970.
We agree with GAO that the occupational                 injury/illness        incidence
rates do not provide          a mea8ure of the impact of the Act.                  Many
other factors       besides the OSHA program-- factors               such as changes
in the industrial         mix    (which GAO notes),       demographic      change, the
business    cycle,     and OSHA's recent emphasis on enforcement                   of its
recordkeeping       requirements--       have influenced      occupational       injury
and illness      incidence      ratea.      The heightened       awarene88 of the
importance     of workplace        safety    and health    that followed        passage
of the OSH Act also would have influenced                  the rates:       by
promoting     better    reporting      and thus raising       the rates on the one
hand, and by increasing            attention    to workplace        hazards and thus
lowering    the rates on the other hand.
              ina the Role czflovers               andorkerg
The report's    discussion  of ways to strengthen         the roles of
employers    and workers does not, in our judgment,          give adequate
weight to OSHA's onsite     consultation    services      and Voluntary
Protection    Programs (VPP).    The onsite    consultation       program,
which is offered     by OSHA-funded State consultant8          free of charge

        Page 72                            GAO/HRD-9M6BROccupationalSafetyandHealthOptions
        Appendix IV
        Commenta   From the Department   of Labor


to employers         at their    request,     is the only OSHA program specifi-
cally     directed      toward the small business           community.     It is
designed to provide           technical     assistance     to small businesses          in
maintaining         safe and healthful        workplaces.      Consultants     help
employers       to identify      hazards and suggest ways to eliminate                or
control      any unsafe conditions          and practices.        They assist     in
setting      up safety     and health management systems to prevent                 the
recurrence        of hazards.      And they involve        the employees at the
site in the consultation             process.      In fact,    the regulations
governing       the consultation        program (found at 29 CFR 1908.6[c][1])
require      as a precondition        to a visit      that the employer allow the
consultant        to confer wit.h employees.
By presenting      an insightful    overview    of possible   administrative
and legislative      improvements    in the OSHA program, the report
offers    much food for thought.        We appreciate     the assistance     GAO
has provided     in our continuing      efforts   to seek new ways to
improve safety      and health    in the workplace.
Sincerely     yours,

Gerard-F.     Scannell
Assistant     Secretary

        Page 73                           GAO/HRDM86BR        Occupational   Safety and Health Options
Appendix V

Major Contributors to This Report

Human Resources         Charles A. Jeszeck, Economist
Washington, D.C.
                        David J. Toner, Regional Management Representative
Philadelphia Regional   Donald W. O’Bryan, Evaluator-in-Charge
Office                  Richard A. Chojnicki, Evaluator
                        Regina L. Santucci, Evaluator
                        Paul C. Schwartzel, Evaluator
                        Harry S. Shards, Design Methodology Specialist

                        Wayne Marsh, Evaluator
San Francisco
Regional Office

                        Page 74                   GAO/HRD90-66BR   Occupational   Safety   and Health   Options
Page 76   GAO/HRD-96-66BR   Occupational   Safety   and Health   Options
Related GAO Products

              How Well Does OSHA Protect Workers From Reprisals: Inspector Opin-
              ions (GAO/T-HRD-908, Nov. 16, 1989).

              Occupational Safety & Health: OSHAContracting for Federal Rulemaking
              Activities (GAO/HRD-89-102BR, June 1989).

              Occupational Safety & Health: California’s Resumption of Enforcement
              Responsibility in the Private Sector (GAO/HRD-89-82, Apr. 17, 1989).

              Occupational Safety & Health: Assuring Accuracy in Employer Injury
              and Illness Records (GAO~HRD-89-23,Dec. 30, 1988).

              OSHA'S Resumution of Private Sector Enforcement Activities in Cali-
              fornia (GAO/T-iIRD-88-19, June 20, 1988).

              OSHA'S Monitoring and Evaluation of State PrOgramS (GAO/T-HRD-88-13,
              Apr. 20,1988).

(206107)      Page 76                   GAO/HRD9646BR   Occupational   Safety and Health Options
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