Addressing Worker Safety and Health Through the Lens of Strategic Enforcement

Abstract

Ensuring the safety and health of workers in this country, who are employed at millions of workplaces presenting a dizzying array of hazards, is beyond daunting. And yet, it is exceptionally important, because the lives and well-being of countless workers, and their families, hang in the balance. Every day, workers are maimed or die of their workplace injuries or occupational illnesses. These outcomes are unacceptable. Agencies must use all the means at their disposal to keep workers safe and healthy in their workplaces. This paper addresses this challenge through the lens of strategic enforcement, with the goal of maximizing enforcement effectiveness to save lives and limbs.

First, we examine how, under the Occupational Safety and Health Act, federal and state enforcement schemes are designed to interact. Next, we dive into the impressive array of strategic enforcement tools that are available to federal, state, and local enforcers, and we observe that many of them are either unrecognized or underutilized. We emphasize that these are all significant, because, given our limited enforcement resources, we need to use every tool we can muster—from strategic targeting, to enterprise-wide enforcement, to heightening deterrence through more robust penalty assessments and publicity, to valuing and making the most of partnerships and coenforcement efforts with a wide range of organizations and agencies. And we need to engage in a process of continual evaluation and improvement of our tools and assets, always striving to maximize our enforcement leverage in aid of worker safety and health. Finally, we examine an impressive list of initiatives state and local governments have taken, beyond what the OSH Act mandates, in their efforts to go the extra mile for the safety of the workers in their states and cities. These examples are intended to inspire federal, state and local agencies to do the same, or, hopefully, even better. The stakes are high. Workers deserve to work in safe and healthy environments. This paper is intended to provide practical ways in which state and local agencies can better—and potentially far better—satisfy that obligation.

Keywords

worker-engaged safety and health management programs strategic communications partnering with community organizations incentivizing strategic focus state and local initiatives

Introduction

Part I of this paper focused primarily on the respective roles of federal and state governments in ensuring worker health and safety, and on the often unrecognized or underutilized enforcement tools that are available to assist them in strategically discharging that weighty responsibility. In Part II, we examine: how enforcement case resolutions can include provisions that will promote ongoing compliance, like requiring adoption of worker-engaged safety and health management programs; how strategic communications and publicity that names violators can effectively deter violations at multiple worksites; how engaging with community-based organizations and worker centers as partners or “coenforcers” is key in leveraging limited governmental agency resources and maximizing their efficiency; and how emphasizing and incentivizing a strategic focus on all enforcement work advances the agencies’ compliance mission. Finally, Part II shines a light on a number of inspiring state/local initiatives designed to exceed federal benchmarks for worker health and safety.

Case Resolutions That Promote Ongoing Compliance

Ideally, a company inspected and cited by a safety and health agency will have the incentive to do better in protecting their workers in the future. Sometimes that's the case, but it can’t necessarily be counted on. And with recidivist violators, it's reasonable to assume they haven’t taken their safety and health obligations seriously enough, such that additional measures to improve their behavior are called for. In settlement agreements resolving citations for violations committed by such companies, these additional provisions are often referred to as “enhanced abatement” measures.

Perhaps the most important and potentially workplace-changing enhanced abatement is a company's agreement to develop and implement a proactive safety and health management program. Rather than reacting to an injury or illness and fixing what caused it after the fact, the goal of these programs is to find and fix hazards before they do harm to the worker.

Federal OSHA doesn’t currently have a standard that requires all employers to implement a safety and health management program, but it strongly encourages them to do so. Some State Plan states have such requirements, of one kind or another. See State Legislation and Rulemaking Opportunities to be More Effective than Federal OSHA, section 7, infra. Those State Plan states lacking an applicable requirement should at least consider, for serious violators, including a provision in settlement agreements that mandates the adoption of such a program, as it can be a game changer.

These are among the features of a program, as directed to employers and described on OSHA's website¹:

Establish safety and health as a core value. Tell your workers that making sure they finish the day and go home safely is the way you do business. Assure them that you will work with them to find and fix any hazards that could injure them or make them sick.

Lead by example. Practice safe behaviors yourself and make safety part of your daily conversations with workers.

Implement a reporting system. Develop and communicate a simple procedure for workers to report any injuries, illnesses, incidents (including near misses/close calls), hazards, or safety and health concerns, without fear of retaliation. Include an option for reporting hazards or concerns anonymously.

Provide training. Train workers on how to identify and control hazards in the workplace, as well as report injuries, illnesses, and near misses.

Conduct inspections. Inspect the workplace with workers and ask them to identify any activity, piece of equipment, or materials that concern them. Use checklists to help identify problems.

Collect hazard control ideas. Ask workers for ideas on improvements and follow up on their suggestions. Provide them time during work hours, if necessary, to research solutions.

Implement hazard controls. Assign workers the task of choosing, implementing, and evaluating the solutions they come up with.

Address emergencies. Identify foreseeable emergency scenarios and develop instructions on what to do in each case. Meet to discuss these procedures and post them in a visible location in the workplace.

Seek input on workplace changes. Before making significant changes to the workplace, work organization, equipment, or materials, consult with workers to identify potential safety or health issues.

Make improvements. Set aside a regular time to discuss safety and health issues, with the goal of identifying ways to improve the program.

While a safety and health management system—diligently implemented—is the gold standard for worker safety, other enhanced abatement measures can also be highly effective in encouraging future compliance. A recent enterprise-wide federal OSHA settlement with multiple-violator Dollar Tree provides a good example. Covering thousands of stores, including both Dollar Tree and Family Dollar establishments, the settlement requires the company to:

Conduct a comprehensive, nationwide assessment of the root causes of the violations OSHA has repeatedly cited at multiple stores;²

Develop a plan to identify causes and make operational changes to correct them within a 2-year period;

Regarding any future violations related to blocked exits, access to fire extinguishers and electrical panels, and improper material storage at stores nationwide, the companies must correct hazards—within 48 h of OSHA notifying them—and later submit proof of the hazards that were corrected. Failure to do so subjects the companies to monetary assessments of $100,000 per day of violation, up to $500,000, as well as OSHA inspection and enforcement actions;

Establish a safety incentive program that recognizes safety and health achievements at the store level;

Establish a safety advisory group of at least 15 associates to analyze store safety compliance issues and advise;

Enhance hazard identification and control programs;

Develop an audit program;

Create a new employee training program;

Hire additional safety professionals;

Maintain a 24-hour hotline to receive safety complaints and establish a tracking system to ensure complaints are addressed;

Hold quarterly meetings between OSHA and its Dollar Tree and Family Dollar operations to discuss progress toward systemic improvements.³

Agencies should consider settlement agreement enhancements like these as they can prompt otherwise reticent employers to take compliance with the law, and protection of their workers, seriously and methodically, perhaps for the first time.

Strategic Communications/Publicity

State Plan states, like federal OSHA, have many means to communicate with the public, with workers, and with the regulated (employer) community. These include, of course, outreach programs, in-person and Zoom seminars, website information, blog and social media posts, e-alerts, and so forth. Here we briefly examine 2 communications strategies specifically related to enforcement.

Severe Violator Enforcement Program

Federal OSHA's Severe Violator Enforcement Program (SVEP), launched in 2010 and restated in 2022,⁴ is designed to apply the agency's resources strategically to inspecting and monitoring employers that have “demonstrated indifference to their OSH Act obligations.” Specifically, any of the following types of inspections will place the employer into the SVEP:

A fatality/catastrophe inspection where OSHA finds at least one willful or repeated violation or issues a failure-to-abate notice based on a serious violation directly related either to an employee death, or to an incident causing 3 or more employee hospitalizations.

An inspection where OSHA finds at least 2 willful or repeated violations or issues failure-to-abate notices (or any combination of these violations/notices), based on the presence of high gravity serious violations.

All egregious (e.g., per-instance citations) enforcement actions.

Once placed in SVEP, severe violators are subject to mandatory follow-up inspections, special scrutiny as to whether or not enterprise-wide abatement is warranted, and settlements with enhanced compliance provisions including, for example, hiring a qualified safety and health consultant to develop and implement an effective and comprehensive safety and health program.

Also, very significantly for our purposes here, a company that is placed in SVEP—including one that is contesting the underlying citations that landed it there—is publicly listed on the Severe Violator Enforcement Program Log.⁵ In essence, being listed there is the functional equivalent of being on OSHA's wall of shame, visible to shareholders, customers, government contractors, and prospective workers.

An employer can be removed from the Log after being posted there for at least 3 years from OSHA's having received acceptable abatement verification, payment of all final penalties, and proof of compliance with all applicable settlement provisions. Additionally, the company must have had no additional serious citations related to the hazards identified in the original SVEP inspection or at any related establishments.

For obvious reasons, companies don’t want to find themselves on the publicly available SVEP Log. Hence, the SVEP process is a valuable strategic enforcement tool. State Plan states are required to create their own SVEP program, either the same as or more effective than federal OSHA's, to publicize bad actors in their states, and to move them into compliance.⁶

The Power of the Press Release

For essentially the same reasons that apply in the SVEP context, the issuance of press releases in cases where significant violations have been cited is another important strategic deterrence tool. To leverage it, agencies need to create a communications strategy aimed at highlighting their enforcement work, especially against serious offenders.

This is what OSHA did in 2009 when it began sending press releases to local media and trade publications when post-inspection fines of more than $40,000 were issued. The policy was designed to highlight OSHA's enforcement activity and to let the public—and other local companies in the same or related industries—know about employers who committed serious violations, and the fines they received.

A June, 2020 paper published in the American Economic Review studied the effect of an OSHA press release issued about one company's violations on the subsequent compliance behavior of nearby facilities in the same industry. Its findings were remarkable.⁷ According to the study, a single press release naming a company that's violated workplace health and safety regulations leads to 73% fewer violations at comparable facilities within a 3-mile radius, a greater improvement than if OSHA had inspected those sites directly. Moreover, positive compliance effects were seen at peer facilities as far away as 31 miles, as well as fewer injuries.

“OSHA would have to conduct an additional 210 inspections to elicit the same improvement in compliance as sparked by a single press release about severe violations,” according to researcher Matthew S. Johnson, assistant professor at Duke's Sanford School of Public Policy. A great example of “leveraging resources.”⁸

Engaging with Community Stakeholders (Co-Enforcement), and with Other Agencies

The critical importance to strategic enforcement of engagement with community organizations like worker centers, legal services offices, and other worker advocates can’t be overstated. It also has been discussed in depth in at least 3 of the Labor Standards Enforcement Toolbox⁹ tools, including Tool 4: Introduction to Strategic Enforcement; Tool 7: Sharing Information with Community Organizations; and Tool 12: Introduction to Co-Enforcement. Review of these resources is recommended. A summary list of how worker advocates can support agencies’ enforcement efforts, drawn from Tool 4, includes:

Identifying noncompliant industries and practices;

Providing information about industry operations and key players;

Connecting agencies with workers who are unfamiliar with enforcement officials or distrust institutions;

Referring cases;

Facilitating interviews with workers:

Providing or identifying language translation services;

Identifying neutral, convenient meeting locations for worker interviews and check distributions;

Providing complementary investigatory tools (e.g., background research on employer, industry, and historical or parallel workplace issues);

Providing information obtained through their own outreach and investigations of violations;

Collaborating on investigations through formal or informal agreements between agencies and community organizations;

Providing feedback on compliance assistance materials; and

Partnering on outreach and education.

For the reasons listed above, collaboration with community organizations, legal aid offices, and worker centers is indispensable to effective strategic enforcement. Here we’ll highlight a few tools particularly worth noting, designed to facilitate cooperative relationships/partnerships between agencies and these nongovernmental groups.

Formalized Partnerships/Alliances

While many cooperative arrangements between worker advocacy organizations and federal and state worker protection agencies exist informally and function effectively, a written agreement formalizing the relationship can be especially valuable. On its face, it signifies the seriousness with which both parties view the relationship. It also formally outlines the ways in which the outside organization and the agency pledge to work together for the common goal of worker health and safety.

In service of that goal, federal OSHA has operated an Alliance Program¹⁰ for many years with many different kinds of organizations, from trade associations to foreign consulates to worker centers, all intended to help the agency achieve its strategic goals.¹¹ Alliances are established through written agreements between OSHA and an organization for an initial term of 2 years. In assessing Alliances to pursue, OSHA considers:

How the proposed Alliance's goals align with OSHA's strategic priorities;

What capabilities the potential participants bring to the table;

The degree to which the Alliance can address emerging workplace safety and health issues;

Whether the potential participants have demonstrated a commitment to working cooperatively with OSHA;

The ability of the potential participants to conduct outreach to high-hazard industries and at-risk workers.

Federal OSHA has found that Alliances help increase worker access to effective workplace safety and health tools and to information about worker rights and employer responsibilities; leverage resources to maximize worker safety and health protections; and establish progressive dialogue with the agency and others committed to workplace safety and health.¹²

Many of these Alliances have been with worker advocacy organizations. One that's noteworthy is with the Brazilian Worker Center (BWC) located in Framingham, Massachusetts. First entered into in April 2006, BWC's Alliance with multiple OSHA offices in Massachusetts has been renewed through the years, and in 2021 the Alliance reached “Ambassador” status.¹³

More recently, this year the worker center Centro Comunitario de Trabajadores (CCT), located in New Bedford, Massachusetts, and serving a constituency of mostly indigenous Guatemalan seafood processing plant workers, entered into an Alliance with some of the same OSHA area offices. The Alliance will emphasize “addressing workplace safety and health hazards faced by CCT's constituency of immigrant and low-wage workers in southern New England, as well as understanding the rights of these workers and the responsibilities of employers under the … OSH Act.”

The Alliance with CCT is noteworthy because of the way it's carefully tailored to the needs and interests of the organization's constituents. Some of its objectives are worth quoting verbatim:

Convene or participate in forums, roundtable discussions, or stakeholder meetings on low-wage and immigrant workers to help forge innovative solutions in the workplace or to provide input on safety and health issues.

Encourage worker participation in workplace safety and health regardless of immigration status and build relationships with OSHA's Regional and Area Offices to address health and safety issues faced by low-wage and immigrant workers.

Share information among OSHA personnel and industry safety and health professionals regarding the Centro Communitario de Trabajadores’ best practices or effective approaches through training programs, workshops, seminars, and lectures or other forums developed by the participants.

Collaborate with other Alliance participants on specific issues and projects on preventing workplace hazards for immigrant workers that are addressed and developed through the Alliance Program.

Develop and disseminate case studies on the specific difficulties and strategies found effective in preventing hazards faced by immigrants and publicize their results.

The Participants will also work together to achieve training and education objectives, including understanding workers’ rights and the use of OSHA's complaint process, by communicating in “a culturally and linguistically appropriate manner.”

The potential strategic significance of this kind of collaboration—one that makes clear that workers have the same rights to a safe workplace regardless of immigration status, that speaks in their native language(s), that targets the low-wage, high hazard processing plants where many of them work, and that pledges the agency's partnership in rooting out both safety and health, and retaliation, violations—can’t be overstated.¹⁴

A number of State Plan states have established their own Alliance programs,¹⁵ predominantly with industry groups, and occasionally with unions. State Plans are strongly encouraged to seek out community organizations, legal nonprofits and worker centers too, as Alliance partners, for all the reasons presented above.

Formalized Information Sharing/Common Interest Agreements

Information sharing between worker advocacy organizations and worker protection agencies is both crucially important and challenging. This subject is expertly discussed in Tool 7, and the advice presented there won’t be repeated here. (Please do take a close look at that paper.) Here we will briefly examine one legal tool, not frequently used, that may be particularly useful in promoting information-sharing between advocacy organizations and safety agencies, because of its potential to protect confidential communications from disclosure to the opposing party (here, the employer) during discovery and litigation.

The tool, known as the “common interest doctrine,” is an exception to the general rule that disclosure of a communication to a third party destroys any privilege that the communication may have enjoyed. In its traditional use, the doctrine permits attorneys representing different parties with similar legal interests to share information without having to share it with others.

The parties’ common interest, and their desire to keep the information they share safe from disclosure to other parties, is, as a matter of best practice, memorialized in a common interest agreement (CIA). Federal and state government agencies often enter into CIAs with one another for the purpose of protecting confidential information they share for a common purpose, including enforcement of their respective laws.¹⁶ In the safety and health context, they share a common interest in requiring the subject employer(s) to comply with applicable federal and state laws and regulations protecting workers from harm due to job-related hazards.

Notably, the common interest privilege generally applies where each party has its own attorney since it's effectively a “nonwaiver” of other legal privileges claimed by lawyers, specifically attorney–client privilege and the work product doctrine. Recently, though, the US Labor Department has entered into at least one CIA with several related worker centers in the New England Region, to facilitate protected sharing of information in the context of a wage and hour investigation and litigation. In that matter, nonattorney worker center representatives signed the agreement, as did an attorney for the Labor Department.

It's still too early to determine the legal effectiveness of CIAs’ protection of the mutual sharing of information between labor agencies and worker advocacy groups. But when privileged or otherwise confidential information is in fact shared, it's always a good idea to consider a common interest agreement. It's also always a safer bet to have an attorney represent the worker center/advocacy group when entering into these potentially very helpful tools, since their legal effectiveness is increased by the involvement of an attorney.

Designating Employee Representatives for Worksite Inspections

As pointed out in other materials in the Strategic Enforcement Toolbox, it's helpful for agencies to enable the designation of worker advocacy organizations as “official” representatives of individual or multiple workers, akin to the representative status attorneys receive. (See Tool 7 at p. 19, for example.¹⁷) In the safety and health context, the role of the representative is crucial particularly – but not exclusively – during the agency's inspection of the worksite. In this regard, a recent USDOL regulatory development is quite relevant, and important.

On August 29, 2023, OSHA announced¹⁸ a notice of proposed rulemaking,¹⁹ to revise existing regulations on who can be authorized by employees to act as their representative to accompany safety and health compliance officers during physical workplace inspections. On April 1, 2024, following receipt and analysis of a multitude of public comments, the agency published its Worker Walkaround Representative Designation Process rule,²⁰ to be effective on May 31, 2024.

First, the new regulation clarifies that the representative of the employees can be an employee of the employer, or a third party. Second, this revised version of the previous rule makes clear that employees' options for third-party representation during OSHA inspections aren't limited to those individuals with skills and knowledge similar to that of the two examples provided in the prior version, that is, industrial hygienist or safety engineer. The universe of acceptable third-party representatives is expanded to include anyone as to whom, in the judgment of the Compliance Safety and Health Officer, “good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).”

This revision is particularly significant because it opens the door to community organizations, legal services providers, and other worker advocates, like worker centers, that have the trust of the most vulnerable workers, and the communication and cultural competency skills needed to assist workers in accurately identifying and describing the workplace hazards subject to inspection.

The preamble to the proposed regulation explicitly recognizes this type of workplace scenario, and is worth quoting here in full:

“[E]mployees may be reluctant to speak directly or candidly with government officials for a number of reasons. For example, some workers, such as immigrants, refugees, or other vulnerable workers, may be unfamiliar with OSHA and the agency's inspection process, face cultural barriers, or fear that their employer will retaliate against them for speaking to OSHA. In these situations, employees may not feel comfortable participating in OSHA's inspection without a trusted presence, which would negatively affect the CSHO's ability to obtain important information about workplace hazards and conditions. Worker advocacy organizations, labor organization representatives, consultants, or attorneys who are experienced in interacting with government officials or have relevant cultural competencies may be authorized by employees to represent them on walkaround inspections. The CSHO may determine such third–party representatives are reasonably necessary to the conduct of an effective and thorough physical workplace inspection if their presence during the walkaround inspection would enable more open and candid communication with employees who may not otherwise be willing to participate in the inspection.”

Employer organizations lined up in strong opposition to the proposed rule. And, on May 21, 2024, the U.S. Chamber of Commerce and several other industry groups challenged, on multiple grounds, the newly-promulgated revised rule in federal district court in Texas.²¹ The U.S. Department of Labor is mounting a vigorous defense.

Note to State Plan States

For State Plan states, the rule as issued states:

OSHA concludes that these clarifying revisions enhance the effectiveness of OSHA's inspections and enforcement of occupational safety and health standards. Therefore, OSHA has determined that, within six months of the promulgation of a final rule, State Plans are required to adopt regulations that are identical to or “at least as effective” as this rule, unless they demonstrate that such amendments are not necessary because their existing requirements are already “at least as effective” in protecting workers as the Federal rule.

Unless the revised rule is invalidated, State Plan states are required to enact a comparable, if not more effective, rule expanding who can qualify as an employee-designated walkaround representative. Moreover, regardless of the outcome of the ongoing litigation in federal court in Texas, the fundamental principle that third parties authorized by employees can bring significant value to enforcement inspections remains unchanged. Hence, from a strategic enforcement perspective, State Plan states can and should exercise their authority to promulgate a comparable or more effective walkaround representative rule, whether OSHA's revised regulation survives the current challenge or not.

Collaborations/Memoranda of Understanding (MOUs) with Other Government Agencies

Worker safety and health enforcement agencies should also consider strategic collaborations and information-sharing arrangements with other government entities, in support of their mutual common interests.

For example, addressing the then-growing (and continuing) problem of misclassification of employees as independent contractors, a US Labor Department initiative began early in the Obama administration to enter into MOUs with various governmental units that had a common interest in rooting out misclassification, and the various kinds of violations it creates. The initiative began with information-sharing and cross-referral agreements with the Internal Revenue Service,²² and quickly extended to MOUs with state labor departments and attorneys general offices around the country.²³

While this initiative focused initially on wage violations, it's also consequential for state and federal worker safety agencies, because employees misclassified as independent contractors are legally protected by worker safety and health laws, but they may not understand that they are, and their employers unlawfully treat them as if they aren’t. Hence, when one agency, like the IRS, discovers a case of misclassification, and makes an inspection referral to the applicable federal or state worker safety agency, workers obtain the protection they’re due, and the agency's enforcement mission is bolstered. Indeed, for many agencies, rooting out misclassification is an enforcement priority.

Federal OSHA has a long history of MOUs with other federal agencies, both within and outside the Labor Department.²⁴ Some of these, like a 1979 MOU between OSHA and the Mine Safety and Health Administration, delineate the two USDOL safety agencies’ respective jurisdictions.²⁵ Others, such as a 2014 MOU that OSHA's Region 3 office entered into with EPA's Region 3, was designed to “improve and optimize the combined efforts of the Parties to achieve protection of workers, the public, and/or the environment at facilities” subject to their respective jurisdictions. This would include cross-trainings, cross-referrals, and joint inspections/investigations as warranted.²⁶

More recently, in August 2021, OSHA and USDOL's Wage and Hour Division (WHD) signed an MOU establishing a collaborative partnership “to protect the health and well-being of the Nation’s workforce, ensuring the effectiveness of a complaint/referral system, and promoting the highest level of compliance with the laws enforced by each Agency.” Like the MOU with EPA, this would include cross-referrals, developing and conducting trainings for their respective staffs to ensure valid referrals, and coordinated enforcement activities. OSHA State Plan states are looped in as well, with federal OSHA committing to encourage them to respond to safety and health referrals from WHD, and to make potential wage violation referrals to WHD. State plans will also be encouraged to participate in any trainings presented under the MOU.²⁷

As a final federal OSHA example, in October 2023, OSHA entered into its latest MOU²⁸ with the National Labor Relations Board “to facilitate interagency cooperation and coordination” between them “by establishing a process for information sharing and referrals, training, and outreach,” with a particular but not exclusive focus on OSHA's antiretaliation provision (OSH Act section 11(c)). That provision is singled out because many acts of unlawful retaliation under section 11(c) are also unfair labor practices under section 8(a)(3) of the National Labor Relations Act (NLRA). While the remedies available for such violations under the OSH Act are broader than those under the NLRA, workers have only 30 days to report them to OSHA, while the time period under the NLRA is 6 months. Hence, a victim of retaliation who's missed the reporting window under the OSH Act may still be afforded a remedy under NLRA, and OSHA's referral of the worker to the NLRB is an important protocol. Here again, referrals by State Plans to the NLRB are encouraged, and State Plans are expected to respond to referrals from the NLRB concerning potential violations of state safety and health laws and regulations.

While federal OSHA has a long history of agreements with other agencies, at least some State Plan OSHAs have followed suit. Oregon OSHA is particularly noteworthy, having entered into agreements²⁹ with an array of federal and state agencies. These include, for example, one with OSHA Region X delineating responsibilities in the event of a natural disaster or terrorist event;³⁰ another with the federal Environmental Protection Agency, regarding Oregon OSHA's role in enforcing the worker protection standards of the federal environmental law regulating pesticides³¹; and yet another with the Civil Rights Division of the Bureau of Labor and Industries (BOLI), addressing the handling of worker discrimination complaints.³²

Especially worthy of attention is Oregon OSHA's interagency agreement with BOLI's Wage and Hour Division,³³ describing the roles and responsibilities of each agency as they relate to agricultural labor housing and employment. Both pledge to report to one another on their respective enforcement activities in this sector, and both agencies agree to refer to one another observed possible violations, as set out in checklists of potentially violative conditions each will provide to the other. These are fine examples, by a State Plan, of interagency agreements designed to enhance multiple agencies’ enforcement capacities. Please take note!

Strategic Evaluations

Ongoing review, and periodic formal evaluation and reassessment are essential requirements for any mission-driven, strategically oriented organization. Suggestions for leading, managing, and evaluating worker protection strategic enforcement initiatives can be found at Tool 10, “Managing for Strategic Enforcement: a Conceptual Toolkit,” which makes clear:

[F]rom the strategic enforcement standpoint, ongoing review and assessment of each activity, through the lens of its value and effectiveness in advancing the agency's strategic objectives, is crucial. An initiative implemented or an investigation begun because of its strategic promise needs to be regularly assessed, with an eye toward whether it continues to merit the resources the agency is devoting to it. Redirecting resources from an activity that was initiated following careful and appropriate consideration, but hasn’t produced the results anticipated – and, on review, is deemed not likely to – is not a failure. It's an opportunity to learn how to do better with the next strategic initiative, or investigation, or case, selected for agency action.

Setting standards designed to drive strategic performance by staff is also critically important. If agency employee performance is judged primarily by numbers of closed cases, for example, staff activity will be directed toward meeting or exceeding the expected number, regardless of the strategic value of the cases reported. Because strategic cases are often more complex and require commitment of more staff resources than garden-variety nonstrategic cases, any personnel evaluation system needs to devise ways to recognize and appropriately reward such work.

In Tool 10, we briefly reported on how OSHA recognized the need—for performance appraisal and government accountability reporting purposes—to accord greater weight to strategic, impactful, and more resource-intensive enterprise-wide cases than to straightforward single-establishment cases. This led to the development and roll-out of OSHA's Enforcement Weighting System (EWS) in 2015, a system that weighted certain inspections depending on the time taken to complete them, like complex fatality and enterprise-wide inspections, and also on their impact on workplace safety and health, like priority workplace violence or heat inspections.

That system was revised in 2019 with the creation of a new OSHA weighting system (OWS) during the Trump administration that included not only inspections but also enforcement support functions and compliance assistance. Under OWS, criminal and significant (high penalty) cases receive the highest number of “enforcement units” (7 “EUs”), followed by fatality and catastrophe inspections (5 EUs). The 4 categories of common, usually less complex programmed inspections that are among the leading causes of death—caught-in, electrical, fall, and struck-by hazards—follow, garnering 3 EUs each. Next are programmed inspections focused on priority serious safety and health hazards that include, among others, combustible dust, ergonomics, heat hazards, and workplace violence. Each of these types of inspections receives just 2 EUs. All other inspections not otherwise listed receive 1 EU.³⁴

Under the revised OWS system, as reported by OSHA³⁵ and as noted in the AFL-CIO's Death on the Job report, the majority of EUs result from inspections related to the fatal 4 safety hazards noted above, that receive 3 EUs each. Meanwhile, EUs resulting from labor-intensive inspections addressing ergonomics, heat, non-PEL (permissible exposure limit) overexposures and workplace violence combined only accounted for 242 of 59,868 total EUs in FY 2022. The AFL-CIO's analysis concludes that “[t]here has been a decline in enforcement activity involving significant and complicated cases that began during the Trump administration.” Its report contends that “this system will continue to mask the significance of health inspections completed and disincentivize inspectors from completing these time-intensive and complex inspections—the opposite intended effect of the original weighting system.”³⁶ Given the usually much greater complexity of inspections involving such health and safety issues as ergonomics, toxic exposures limits, combustible dust, and workplace violence (all accorded only 2 EUs), this conclusion certainly appears justified.

The bottom line is that any system that “weights”—and therefore recognizes and rewards—certain difficult, time-intensive types of matters that the agency has determined are strategically important, is more likely to result in more of that work getting done than if all inspections—simple or complex—receive the same credit. What those areas of focus should be will depend on the assessment and reassessment the agency should be making on a regular and recurring basis, consistent with its strategy to most effectively ensure optimal workplace safety and health with the limited resources it has.

State Legislation and Rulemaking: Opportunities to Be More Effective Than Federal OSHA

Recall that while the OSH Act regulates workplace health and safety nationally, State Plan states are empowered to devise their own regulations and enforcement systems, so long as they’re “at least as effective” as federal OSHA's. Moreover, even in states in which federal OSHA is responsible for enforcing worker safety and health requirements applicable to private sector employers, local and state action is only federally preempted when OSHA has adopted an occupational safety and health standard addressing a particular and specific workplace hazard.³⁷ A number of areas in which states and localities have enacted worker safety and health protections that exceed those provided by federal OSHA follow.

During COVID

The right—and some might say the obligation—of states to act in the absence of federal safety and health regulation was probably never as squarely faced as in the first few years of the COVID-19 pandemic. Within a few months of the initial outbreak, tens of thousands of workers had fallen ill at work and hundreds had died, including workers in hospitals, first response units, nursing homes, meat and poultry plants, grocery stores, warehouses and mass transit. And yet, the Trump administration failed to issue any kind of mandatory requirements aimed at prevention—including by emergency temporary standard—and only suggested rather than required, to the consternation of worker safety and health experts and advocates,³⁸ that Centers for Disease Control (CDC) recommendations be followed.³⁹ Hence, the primary tool available for federal enforcement was the cumbersome general duty clause, which was ultimately applied in only in a few, particularly egregious cases where large outbreaks had occurred.

This prompted proactive states, and worker advocacy organizations like the National Employment Law Project (NELP), to leap into action. In April 2020, NELP published a policy and data brief titled “Protecting Worker Safety and Health in the COVID Crisis: A State and Local Model Policy Response.”⁴⁰ It included model language for a variety of COVID-related worker protections that states could cut and paste into draft legislation that governors could mandate using their emergency public health powers, and that local governments could implement through local ordinances or in some cases through mayoral or health department orders. A companion paper⁴¹ urged the enactment of legislation to create enforceable COVID-19 standards, including:

Adoption of a COVID-19 specific standard (such as California's Aerosol Transmissible Disease standard⁴²) for healthcare and emergency response employers;

Adoption of enforceable COVID-19 specific workplace safety requirements for all other employers, including adoption of the CDC and OSHA COVID-19 guidelines;

Protection for workers who report or object to unsafe working conditions.

By June 2022, 14 states had adopted comprehensive, enforceable COVID-19 worker safety protections. This included Virginia, the first state OSH to issue an emergency temporary standard in July 2020, followed by Michigan, California, and Oregon (all State Plan states). In other states, executive orders were issued by the governor, including requiring face masks in the workplace in North Carolina (State Plan), and Texas and Massachusetts (both federal OSHA states).

Another paper, from the Economic Policy Institute written in June 2022,⁴³ details a number of measures taken by local governments to address the challenges facing workers during the pandemic, including emergency authorities effective for the duration of a local public health emergency order.

Local governments—most typically by mayoral executive order—have used these emergency authorities to issue stay-at-home orders, as well as masking, testing, quarantine, and vaccination requirements (citations omitted). For example, in December 2021, New York City's mayor issued an order requiring all workers who perform in-person work or who interact with the public to be vaccinated. These orders were typically enforced by local public health departments which, in some places, have taken complaints from workers and taken enforcement actions to stop workplace spread. Although these local public health measures are not always tied to the workplace, they are crucial to worker health and safety by ensuring that workers can stay home when necessary and reducing the likelihood of unmasked interactions.⁴⁴

All of these government units took action when federal OSHA's failure to act had left what was essentially an enforcement vacuum. The COVID-19 pandemic is a striking example of how many states and localities—though certainly not all—can and have stepped up, and implemented protections for workers that are clearer and more readily enforceable than the general duty clause, far better than the “at least as effective” State Plan standard the OSH Act requires. But it's not the only example.

Heat Exposure

Exposure to excessive heat – whether indoors or outdoors – has always been a health and safety hazard capable of causing death or serious bodily harm. In fact, heat is the leading cause of death among all weather-related phenomena, and is becoming more dangerous as nine of the last ten years were among the warmest on record. In October, 2021, federal OSHA finally began the rulemaking process to consider a heat-specific workplace standard.⁴⁵ As of this writing, no federal standard has yet been promulgated. On August 30, 2024, however, OSHA published its Notice of Proposed Rulemaking (NPRM) for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.⁴⁶ Comments on the proposed rule will be accepted through December 30, 2024. It will likely be at least two years before a final rule, if any, is promulgated.

Currently, federal OSHA's only means of protecting workers from excessive heat is by invoking the law's general duty clause. Some such cases have been brought, but, as has been noted before, a regulation with specified requirements is clearly more protective for workers and more readily enforced. In July 2023, OSHA issued a hazard alert letter regarding heat, but, as the letter expressly states, “[t]his hazard alert is not a standard or regulation, and it creates no new legal obligations.”⁴⁷

Here again, states have begun to address this regulatory gap proactively. Most recently, on September 20, 2024, Maryland published its final Heat Illness Prevention standard, effective September 30, 2024.⁴⁸ In addition, in May, 2022, Oregon's Occupational Safety and Health Division adopted permanent rules to protect workers laboring in excessive heat.⁴⁹ The rules apply to outdoor and indoor work activities when temperatures exceed 80 degrees Fahrenheit, and require employers to provide employees with access to shade, cool drinking water, additional rest breaks when temperatures exceed 90 degrees, and an acclimatization period to gradually help employees adapt. They also require heat illness prevention training.

Other states have stepped up as well. As of July, 2023, Washington State's Department of Labor and Industries implemented updated protections from excessive outdoor heat, first put in place in 2008. California has long had a heat illness prevention rule for outdoor places of employment,⁵⁰ and on July 23, 2024, the state expanded the scope of its heat standard to include indoor as well as outdoor settings, with some exceptions.⁵¹ In Colorado, agricultural workers have regulatory protection,⁵² and in Minnesota indoor workers are protected against excessive heat and cold, as well as inadequate ventilation.⁵³

Wildfire Smoke

Oregon has also taken the lead in promulgating rules⁵⁴ requiring protection from wildfire smoke, another burgeoning hazard federal OSHA doesn’t regulate through a specific standard. The wildfire smoke rules apply when the Air Quality Index reaches 101, or moderate levels of danger.⁵⁵ Employers are to provide N95 face masks or other federally approved face masks for voluntary use. Those masks are mandatory when the AQI reaches 251. The rules also require communicating with employees on wildfire smoke levels, relocating workers indoors, changing work schedules and providing filtered air when air quality is bad.⁵⁶ Washington state is seeking to adopt a similar standard; it's currently in the rulemaking process.⁵⁷

Right to Refuse Work in Climate Emergency Situations

In March 2023, the National Employment Law Project published a policy brief arguing for stronger antiretaliation rules when workers refuse to work because of the dangers posed by a climate emergency.⁵⁸ The brief cites to a couple of examples of governments taking this employer retaliation threat seriously and doing something about it.⁵⁹ In California, SB1044, enacted in September 2022, prohibits an employer, in the event of an emergency condition, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe. An “emergency condition” includes a condition of “disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act.” The provision doesn’t apply to disaster services or emergency services workers, along with a list of other employees performing various kinds of essential work.⁶⁰ An ordinance with similar intent was enacted in 2018 in Miami-Dade County, making it unlawful for an employer to retaliate or threaten to retaliate against a nonessential employee who complies with County evacuation or emergency orders.⁶¹

Workplace Violence

Workplace violence is another all-too-frequently occurring hazard, whose prevention to date has only been addressed by federal OSHA under the general duty clause,⁶² and without the benefit of a specific OSHA standard.⁶³ There were 392 workplace homicides in 2020, and 37,060 nonfatal injuries in the workplace resulting from an intentional injury by another person, according to the US Bureau of Labor Statistics (BLS).⁶⁴ Each year, an average of nearly 2 million US workers report having been a victim of violence at work, OSHA reports. This is a problem clearly worthy of a standard, since effective means of prevention and response are by now well known.⁶⁵

California has been a leader here. In 2017 it passed a regulation mandating that various steps be taken to prevent violence in the workplace, including the requirement to develop and implement a workplace violence prevention plan, and a training and incident reporting system, in a broad array of healthcare settings.⁶⁶ Other states have taken similar steps.⁶⁷ Quite recently, in October 2023, the California legislature passed and Governor Newsom signed a bill that would expand the coverage of the 2017 rule to all employers in the state.⁶⁸

In the public sector, New York State has enacted legislation that requires public employers (except k–12 schools) to develop and implement workplace violence prevention programs that cover all employees at each of their worksites, a law it asserts is the most comprehensive standard in the country.⁶⁹ And in Massachusetts several years ago, an executive order was issued requiring a zero tolerance policy for violence in the public sector workplace.⁷⁰

Ergonomic Hazards/Excessive Workloads

The enormous proliferation of warehouse “fulfillment center” and delivery work, led by Amazon, and the quota and monitoring systems that often accompany that work, have triggered major increases in serious workplace injuries, including especially musculoskeletal, or “ergonomic” injuries. Ergonomic hazards were targeted by federal OSHA in a regulation promulgated in 2000 during the Clinton administration. The rule was promptly rescinded in early 2001 under the Congressional Review Act, very soon after George W. Bush was elected. Hence, ergonomic hazards and the painful and disabling musculoskeletal injuries they can and do cause,⁷¹ are only regulated by federal OSHA under the general duty clause, which, as has been repeated several times here, is far more cumbersome to enforce than a standard with specific requirements.

Though ergonomic hazards (such as lifting, twisting, and repetitive motion hazards) have been a leading cause of workplace injuries for decades, the role of increased amounts of warehouse work in spiking these rates has begun to spur states into action in the absence of a federal standard. Most recently, the state of Washington has joined California in enacting a standard addressing prevention of ergonomically caused injuries.⁷² Signed by Governor Jay Inslee in July 2023, the law requires employers with high workers’ compensation claim rates involving musculoskeletal injuries to comply with a series of preventative safety requirements. It's noteworthy that the law repeals a 2003 Washington voter initiative that had prohibited state worker protection agencies from enacting ergonomic regulations. Fortunately, that ban is now history, and hopefully other states will also step up to proactively confront and remedy this seriously underregulated hazard.⁷³

Safety and Health/Injury and Illness Prevention Programs

Federal OSHA doesn’t, by regulation, require that all employers develop and implement safety and health (aka illness and injury prevention) programs.⁷⁴ The agency does, however, highly recommend their universal implementation and use.⁷⁵ Several states have opted to require that employers deploy them. A 2016 OSHA report sets out what each State Plan state had required in this regard, as of that date.⁷⁶ When the report was issued, California, Minnesota, Montana, Nebraska, and Washington required a safety plan of all employers, for example, and Arkansas, Connecticut, Maine, New Mexico, New York, North Carolina, Texas, and Vermont required “high hazard” employers to have a plan. California's rule, promulgated in 1991, is a worthy example. Here is how OSHA summarizes it:

Cal. Lab. Code §6401.7 (1991), promulgated by the California Department of Industrial Relations, Division of Occupational Safety and Health (Cal/OSHA), established an Injury Illness Prevention Program (IIPP) standard. All employers are required to develop and implement a written IIPP that, at minimum, provide for the following elements:

Identification of person(s) responsible for implementing the program.

Establishment of a system to identify and evaluate workplace hazards, including scheduled and periodic inspections to identify unsafe conditions and work practices.

Methods and procedures to correct unsafe or unhealthy conditions and work practices in a timely manner.

Training program(s) to instruct employees in safe/healthy work practices and the hazards specific to each employee's job assignment.

System(s) for communicating to employees on workplace safety/health matters, including provisions that encourage employees to report hazards without fear of reprisal.

System(s) for ensuring employee compliance with safe work practices, which may include disciplinary measures.⁷⁷

All employers, with some exceptions for “small” and “low hazard” employers, are required to keep documentation and records associated with implementing and maintaining the IIPP. The IIPP standard also explicitly permits the use of employer and employee occupational safety and health committees to comply with the communication system requirement. In addition, the IIPP must cover all the employer's employees and “all other workers who the employer controls or directs and directly supervises.”

Cal/OSHA requires that every agency workplace inspection include an evaluation of the employer's IIPP. If any of the required program elements are not addressed, employers are considered to be noncompliant.

Here again, states have come forward to create mandatory workplace safety and health practices and procedures that federal OSHA has not, at least to date. These valuable regulatory contributions to worker safety and health prevent injuries and illnesses, and save lives. ⁷⁸

Safety and Health Committees

Active participation of workers through safety and health committees—including committees that are workers-only, union-only, and/or labor/management—can be particularly valuable in identifying and addressing workplace safety and health issues. As with injury and illness prevention programs, federal law doesn’t mandate safety and health committees, but some states do. These can include mandates that State Plan states have adopted to further their state safety and health program, or they can be legislatively required actions to support the state workers’ compensation systems.

For example, Washington, a State Plan state, requires all employers with 11 or more employees (on the same shift at the same location) to establish a safety committee, with both employer-selected and employee-elected members;⁷⁹ the number of employee-elected members must equal or exceed the number of employer-selected members.⁸⁰ Required topics to be covered by the safety committee include review of safety and health inspection reports to help correct safety hazards; evaluating accident investigations to determine if the cause(s) of the unsafe condition was/were found and corrected; and evaluating the workplace's accident and illness prevention program and discussing recommendations for improvement.

In Nebraska, all employers subject to that state's Workers’ Compensation Act are obligated to establish a safety committee,⁸¹ and that committee is charged with adopting and maintaining an effective written injury prevention program. Here again, if the employer isn’t subject to a collective bargaining agreement, the number of employer- and employee-selected members needs to be equal, with employee members selected under procedures prescribed by the Commissioner of Labor.⁸²

Conclusion

Ensuring safe and healthy workplaces for all employees in this country is a noble but elusive goal. And yet, it's one worker protection agencies are duty-bound—and have the honor—to pursue. Comprehensive worker protection laws, and their effective enforcement, are key elements that can help move us toward attainment of that goal.

In this paper, we’ve examined how, while the federal government under the OSH Act has overall responsibility for safety and health in private sector workplaces, the states—particularly but not exclusively State Plan states—are absolutely key actors in protecting their workers. We’ve looked at how State Plan OSHAs, along with federal OSHA, must be strategic in their enforcement efforts, and we’ve examined some tools that can help in that endeavor. We’ve also looked at how states, in support of their workers, can step into regulatory voids that federal OSHA hasn’t filled, and how State Plan states, while they must be “at least as effective” as federal OSHA, can do better than that—as many have.

Hopefully, the strategic tools used and proactive measures taken by both federal and state OSHAs described in these pages will help inspire these agencies to develop new and ever-more effective means to reach the pot of gold at the end of the rainbow: truly safe and healthy workplaces for all.

Footnotes

Acknowledgments

The workplace justice lab@RU aims to address economic inequality through supporting, strengthening, and fostering innovations in government and grassroots organizations. We do this by building dynamic communities of learning and practice, carrying out cutting-edge research, and offering specialized training, webinars, and in-depth one-on-one consultations.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biography

Michael Felsen concluded a 39-year career enforcing federal worker protection laws by serving, from 2010–2018, as New England Regional Solicitor with the Solicitor's Office of the US Department of Labor. Since leaving the Labor Department, Michael has consulted for the International Labor Organization on strategic enforcement, serves as a National Council for Occupational Safety and Health Advisor and co-chair of MassCOSH's legal committee. He previously served as a member of the Massachusetts Attorney General's Labor Advisory Council. He also supports strategic collaborations between state and federal labor agencies and worker centers in Boston and elsewhere, as a member of the Low Wage Worker Legal Network and an Access to Justice Fellow with Justice at Work in Boston, and has assisted in the drafting of state worker protection legislation. He writes frequently on labor and worker protection issues, particularly for the Hill and the Progressive, and is an active member of International Lawyers Assisting Workers.

Addressing Worker Safety and Health Through the Lens of Strategic Enforcement—Part 2