DR. DAVID MICHAELS
Assistant Secretary of Labor
For Occupational Safety and Health

American Society of Safety Engineers
Professional Development Conference & Expo
Baltimore, Maryland

Plenary Remarks
1 p.m. Monday, June 14, 2010


"Modernizing OSHA"

Good morning. We're halfway through the year 2010 and now a full decade into a new century; and, just as most workplaces in America have modernized their practices to be more efficient and productive, OSHA is doing the same.

In today's workplaces we are faced with new procedures and new materials that can present new hazards. We've seen a shocking series of worker deaths from explosions and fires. Numerous reports have called for strengthening government enforcement of safety and health regulations.

OSHA is responding to these problems and adapting our strategies, all while keeping our sights firmly on Labor Secretary Hilda Solis' vision of "Good Jobs For Everyone."

First Steps

Secretary Solis set the tone for the new Administration's commitment to worker safety and health when she walked through the doors of the Department of Labor building in Washington and declared, "There's a new sheriff in town."

In fact, Secretary Solis and OSHA's Deputy Assistant Secretary Jordan Barab chose this conference last year to make some of their first public statements about the direction of the new Administration because we know that ASSE is all about worker safety and health.

In the first months of last year, OSHA took decisive steps to return to the original intent of the OSH Act and make setting and enforcing workplace standards our central focus.

• We realigned priorities within the Agency, eliminated quotas for cooperative programs, moved more personnel into enforcement, and used stimulus funds to hire more standards writers and inspectors.
   
• We announced a new, targeted Severe Violator Enforcement Program that includes increased OSHA inspections of recalcitrant employers, mandatory follow-up inspections, and inspections of other worksites by the same employers.
   
• Following a disturbing series of worker deaths on the job in Las Vegas, OSHA conducted a special evaluation of the Nevada Occupational Safety and Health State Plan, which revealed problems in the State's program. As a result, OSHA conducted expanded evaluations of all the state plans' enforcement programs -- to assess whether any other state plans have problems similar to Nevada's and to determine whether they are operating as effectively as federal OSHA to protect workers. We expect to issue all 25 reports later this summer. In addition, to help assure worker protection in Nevada and to provide technical assistance to the state in addressing the issues identified during its evaluation, OSHA has opened an office in Las Vegas.
   

Open Government

In recent months, we've taken time to listen to our stakeholders and to make ourselves more accessible as part of the White House's Open Government Initiative.

• We held a day-long "OSHA Listens" public forum with a broad range of stakeholders speaking up about how OSHA can be more responsive and effective -- and I want to thank ASSE President Chris Patton for participating and articulating ASSE's views.
   
• We held several Web chats to invite comments on the Department's Strategic Plan and to discuss the Spring Regulatory Agenda.
   
• As part of our openness policy, we have made available on the Web more worker fatality, injury and illness data.
   

Injury and Illness Prevention Programs

We've accelerated our push to make fundamental changes in the way emplyers and workers cooperate to secure safe workplaces -- and we are doing this through an aggressive regulatory agenda.

We know we do not have, nor will we ever have, enough inspectors in every workplace to ensure all health and safety rules and best practices are followed all the time. Therefore, we need to find ways to leverage our resources and meet the goals of the OSH Act.

Our goal must not be to punish or react, but to require employers to plan, prevent and protect. Plan, Prevent and Protect is the new enforcement strategy announced in the Labor Department's spring regulatory agenda. This strategy is echoed in the proposed OSHA standard that would require employers to implement an Injury and Illness Prevention Program tailored to the actual hazards in their workplaces.

Instead of waiting for an OSHA inspection or a workplace tragedy to address workplace hazards, employers would be required to create a plan for identifying and remediating hazards, and then implement this plan.

Essentially, through this common sense rule, we will be asking employers to find the safety and health hazards present in their facilities that might injure or kill workers -- and then fix those hazards.

Under this rule, workers would have a greater voice in the workplace. Workers would participate in developing and implementing the safety and health plan, and have a role in evaluating the plan's effectiveness in achieving compliance.

We've held two stakeholder meetings this month on this proposed rule, in New Jersey and Texas, and we have one more scheduled June 29 in Washington, D.C.

ASSE and other professional organizations asked for this rule, and I believe it has the potential to change the culture of workplaces across America in a way we haven't seen since OSHA was created 40 years ago.

In the last century, workplace reform was mostly reactionary -- implementing regulations after a tragedy and establishing or adopting individual Permissible Exposure Limits for individual chemical hazards. This piecemeal approach won't do for 21st century workplaces.

Systemic Problems

Effective workplace programs are especially needed to address systemic problems within a company or an industry.

A few weeks ago OSHA launched a regional emphasis inspection program in the grain handling industry to address a series of cases where workers have suffocated after being engulfed by grain in silos and bins.

In November we issued nearly $1.6 million in fines to Temple Grain in Colorado after a 17-year-old worker, just out of high school, was buried alive.

In June we issued $1.6 million in penalties to the South Dakota Wheat Growers Association in South Dakota after investigating a terrible, preventable death.

Late last year, when the flow of sunflower seeds in a bin slowed, Steve Lee climbed inside and tried to get the product moving. In a matter of seconds, the seeds engulfed, swallowed him up and smothered him. A horrible moment later the facility manager observed, "He's gone." Co-workers were sent in to rescue him, without training or protection, which caused OSHA to add to the penalty because they also were put in harm's way. Steve Lee was 52 years old when he died.

Risk of engulfment is well known in the grain handling industry. The highest levels of management in the company were aware that workers were exposed to this hazard. They had at their disposal a web-based regulatory compliance program that included workplace safety and health training. It all looked good on paper: Excellent safety program -- but, as OSHA's investigation found, there was little or no implementation.

In these cases and others, standard procedures weren't followed. Numerous rules -- for wearing body harnesses, having observers nearby with rescue equipment, providing workers with appropriate hazard training, implementing lock-out/tag-out procedures, and establishing an emergency action plan -- were poorly followed or not followed at all. The result was tragic for Steve Lee's family, friends, and his community.

So, what is the lesson here? Having a "safety plan" filed in a drawer or on corporate computers isn't enough. An effective injury and illness prevention program requires management leadership and worker participation, hazard assessment and abatement, setting goals, and continual improvement.

An effective program doesn't simply address individual problems; it fosters a culture of workplace safety and health based on PREVENTION -- and PREVENTION must be part of the normal, everyday culture for every job, every workplace, every company, every manager and every employer!

More than 5,000 working men and women die on the job every year in America -- that's 14 people in our country every day who don't return home to their families because of a preventable injury that took their lives. More than 4 million others suffer from serious occupational injuries each year -- all preventable. Thousands more will become ill in later years from present occupational exposure to asbestos, diacetyl, silica, beryllium, hexavalent chromium and hundreds of other deadly toxins.

This must stop!

Unsung Heroes: S&H Professionals

I know that the safety and health professionals attending this conference are doing everything they can to save lives every day on the job and you never get enough credit for what you do. When nothing goes wrong in your workplaces and everyone goes home safe and healthy, how many times has a manager come up to you and said "Good job, nice work, well done"?

Well, Secretary Solis and I want you to know, here and now, that we know how hard you work to protect your fellow workers and we sincerely appreciate your commitment and your accomplishments -- so go ahead and give yourselves a hand. You are workplace heroes for safety and health, every one of you!

We also know that you need OSHA's support, just as we need yours, and we are working every day to back you up with a broad arsenal of reforms that stop blaming workers for their injuries and put the focus back where it belongs -- on the employers' responsibility to find and fix problems in their workplaces.

Accurate Reporting

One thing that needs fixing right now is the message management sends workers who feel sick or get injured on the job.

Studies by the Government Accountability Office and others have noted that, in too many cases in this country, workplace safety incentive programs are doing more harm than good by creating incentives to conceal worker injuries.

Some of these "incentive" programs should more accurately be called "blame the worker" programs when they punish workers for reporting injuries and when they reward workers for not reporting injuries.

For example: Recently a large construction contractor informed OSHA of a corporate policy at one of the sites where the contractor was working. The policy required suspending workers who report an injury, no matter what the cause, and suspending foremen who have more than one reported injury among the members of their crew. OSHA called the company and made it clear we disapprove of such policies.

We also disapprove of incentive programs that, for example, offer a pizza party or allow workers to enter a raffle for a new truck. These incentive programs can discourage employees from reporting injuries because they want to receive the reward.

Good incentive programs feature positive reinforcement when workers demonstrate safe work practices, and when workers take active measures such as reporting close calls, abating hazards, and using their stop-work authority to prevent a workplace tragedy.

One result of the wrong kind of incentive programs is that the number of worker injuries and illnesses are underreported -- sometimes across whole industries. As a result, these programs conceal workplace hazards that, unabated, continue to threaten workers' health and safety. If an injury isn't reported, the safety professional -- YOU -- cannot investigate the incident and nothing can be learned from it.

OSHA inspectors are now watching for these incentive programs and they will scrutinize them to ensure they aren't discouraging workers from reporting injuries and illnesses. Our inspectors are also looking carefully at company records to ensure that they are accurate and comply with the law.

Looking at the bigger picture, it's time to move beyond the pencil and paper some employers are still using to record workplace injuries and illnesses. We need to implement a modern data collection system that will enable us to detect workplace problems sooner and more accurately. We recently held stakeholder meetings in Washington and Chicago on this move to modernize, and we hope soon to issue a proposed rule.

Over the long run, however, the answer to wrong-thinking incentive programs is to change the focus. If you have a culture of safety in your workplace, you don't need incentive programs. If you operate a comprehensive Injury and Illness Prevention Program, the proper motivation is built in.

Increasing Penalties

The word "motivation" has many meanings and OSHA uses many kinds of motivation to assure the safety and health of workers -- including education and outreach programs, compliance assistance, and enforcement.

Enforcement is a useful deterrent, even for the best employers. The threat of enforcement and penalties reminds all employers to do the right thing for their workers. It deters them from any temptation to defer maintenance or cut corners on worker training and safety procedures.

To make enforcement effective, OSHA needs more inspectors and more power to penalize employers who ignore their legal and moral responsibilities. As things stand, OSHA's powers to penalize employers are too weak.

• Willful violations carry a maximum of $5,000.
   
• Willful and Repeated violations carry a maximum penalty of only $70,000.
   
• Serious violations -- that pose a substantial probability of death or serious physical harm to workers -- are subject to a maximum civil penalty of only $7,000.
   

As long as OSHA's penalties remain at these low levels, employers who are determined to gamble with their workers' lives consider worker injury and illnesses the normal cost of doing business. They get a meager OSHA fine, write a check, and they go on, business as usual, exposing workers to horrendous hazards.

In 2001 at a Delaware oil refinery, a tank of sulfuric acid exploded, killing a worker named Jeff Davis. His body literally dissolved in the acid. The OSHA penalty was only $175,000. Yet, in the same incident, thousands of dead fish and crabs were discovered, allowing an EPA Clean Water Act citation of $10 million. How can we tell Jeff Davis' wife and his five children that the penalty for killing fish and crabs is 50 times higher than the penalty for killing their husband and father?

It's an unfortunate fact that sometimes monetary penalties are just not enough. Nothing focuses the mind like the prospect of time in prison. The plain truth is this: To outlaw criminal behavior, we need criminal penalties. Right now, under the OSH Act, the maximum criminal penalty for killing a worker as a result of a willful citation is only a misdemeanor, punishable by at most six months in jail. In contrast, if you harass a wild burro on federal land you can receive a year in prison.

Congressional Action

The Protecting America's Workers Act, now under consideration in Congress, would bring much-needed support to OSHA by --

• raising the ceiling on OSHA fines
   
• increasing criminal penalties and criminal liability for employers who knowingly endanger workers
   
• expanding the rights of workers' and victims' families
   
• strengthening whistleblower protections
   

The creators of the OSH Act understood that OSHA inspectors can't be in every worksite every day, and they intended workers to serve as OSHA's eyes and ears and report when they felt unprotected on the job. In a few recent cases we have seen success.

For example, when OSHA said it had received an anonymous complaint about safety conditions at one of Brocon Petroleum's work sites in New Jersey, the company's executives had a pretty good idea who made the call. So, they fired the employee on the spot. That's a clear violation of workers' rights under the OSH Act, so we charged the employer with illegal whistleblower retaliation -- along with a list of safety violations found during the inspection. We ordered the company to remove all mention of the event from the fired worker's record, to give the ex-employee a positive reference, and to pay the worker $7,500 in back wages. Despite a court order, the company refused to pay what it owed to the terminated employee. In December 2009, U.S. marshals and OSHA took a page from the Repo Man's notebook and seized the company president's black Corvette. At auction, that shiny car brought enough funds to pay the whistleblower and recoup our agencies' costs.

This is a great success story, but we need more whistleblowers as an essential part of our enforcement strategy. However, like our other enforcement penalties, our whistleblower protections are outdated. In 1970, paragraph 11(c) of the OSH Act was a new, modern way to protect workers from retaliation for exercising their rights. Today, 40 years later, it's a dinosaur.

Today, no worker without strong union backing can feel fully protected as intended by the creators of this law, and workers won't feel comfortable using their rights if they don't feel protected.

For OSHA to work, for workers to feel protected, this must change -- and it must change now. PAWA would certainly move us in the right direction here. However, other statutes beyond the OSH Act protecting whistleblowers also need updating and revising to make them consistently strong.

Updating PELs

Another big issue that OSHA is addressing is updating our outdated Permissible Exposure Limits. Many of these are based on 1950s-era science that no longer applies to 21st century workplaces.

Thousands of new and potentially hazardous chemicals have been created in the last half-century and we haven't kept up. We don't have enough effective standards for employers or their workers. This has to change.

OSHA has not taken leadership on this issue. We need to, which is why we recently initiated an internal task force to study options for updating PELs. Previous regulatory efforts to update PELs have not been successful. Individual rulemaking takes an enormous amount of time to analyze health risks and economic feasibility studies of regulatory alternatives.

Even if we succeed in streamlining the rulemaking process, we're still very far behind on the question of efficiently updating thousands of chemical PELs.

We must find a solution, however. Too many workers are at risk.

Hard-To-Reach Workers

OSHA is particularly focusing on at-risk workers who speak little or no English.

We are reminding employers to comply with our requirement that they must present information about workers' rights, safety and health training materials, information and instructions in a language that their workers can understand. I issued a directive to OSHA inspectors to check for this during site visits to be sure that employers are complying.

These hard-to-reach workers, who are so vulnerable to serious harm, are also the least likely to speak up. As a result, they are often exploited by unscrupulous employers who callously expose these workers to health and safety hazards with little or no training or PPE.

In particular and most especially: Immigrant Latino workers die on the job at a rate 50 percent higher than other workers. To put it in painful, human terms: About 14 Latino workers die on the job every week while doing the hardest, most unhealthy, most dangerous jobs in America. This is an intolerable, national disgrace.

I also want to make it clear that OSHA does not discriminate based on national origin. If you're here and working, you have rights and employers have responsibilities.

To address the problem of protecting hard-to-reach workers, Secretary Solis convened a National Action Summit for Latino Worker Health and Safety in Houston in April. I want to thank the leaders and membership of ASSE who contributed to the success of this summit.

Nearly a thousand workers, employers, labor leaders, representatives from community and faith-based organizations, consulates and government gathered for two days to seek new and effective ways to improve workers' knowledge of their workplace rights and their ability to exercise those rights.

Workers came from across the country to relate their fears and their ordeals on the job. We met the surviving worker from an August 2009 tragedy in Austin. Juanito Sanchez came to the Summit to tell how he warned his employer, to no avail, not to overload a scaffold, not to use it to haul heavy loads. He told us how the scaffold -- uninspected, improperly assembled and overburdened -- collapsed. Juanito hung on for his life while his three companion workers fell to their deaths. By the way, OSHA cited all four employers in this tragedy; the penalties totaled more than $150,000. In December, the Austin Chronicle reported a memorial vigil by the families and friends of Juanito's three fellow workers who were not as lucky as he. The vigil was held in front of the completed condominium. A brown paper sign taped to the building's windows invited public comment on the theme, "Safety is everyone's responsibility."

-- which brings us to the lessons of the BP oil spill...

Gulf Coast Tragedy

It's too late to save the lives of 11 workers who vanished, and presumably died, in the Deepwater Horizon explosion. Our immediate focus must be on the workers who are involved in the cleanup.

I recently made my second trip in six weeks to Louisiana to observe OSHA's efforts to ensure safe working conditions for oil spill cleanup workers. This is a coordinated federal response to the historic and catastrophic oil spill along our Gulf Coast. We are part of a team involving the U.S. Coast Guard, NIOSH, NIEHS, EPA, and many other government agencies -- working together with BP to ensure that workers are protected from all hazards encountered with their cleanup work.

You can count on seeing much more of this kind of agency collaboration as we strive in this Administration to coordinate our resources, pool our expertise, and speak with one voice. I'm particularly pleased to note that OSHA and NIOSH are working more closely together than ever to ensure that solid science research leads to strong and effective regulation.

Along the Gulf Coast at this time, there are over 13,000 cleanup workers employed by BP or its contractors; 1,700 boats are supporting the response operations; and more than 1,800 Federal employees are directly involved in the cleanup operations over four states.

Depending on their jobs, these workers can face hazards from heat, falls, drowning, fatigue, loud noises and sharp objects, as well as bites from insects, snakes and other wild species native to the Gulf Coast area. Workers may also face exposure to crude oil, oil constituents and byproducts, dispersants, cleaning products and other chemicals being used in the clean-up process.

OSHA is providing vigorous leadership to ensure that workers are protected from all hazards. Our personnel were deployed to the Gulf during the last week of April. Since then OSHA staff has been deployed to all 17 staging areas in Louisiana, Mississippi, Alabama and Florida.

Every day more than 20 OSHA compliance officers are traveling to all staging areas to ensure that workers are protected from safety and health hazards. OSHA staff is in the field and on boats to make sure BP is protecting cleanup workers from health and safety hazards.

OSHA's Health Response Team from Salt Lake City arrived in Louisiana on May 6 to provide technical support in our efforts to monitor worker exposure.

OSHA staff has made more than 700 site visits, both unannounced and coordinated with BP, covering all 17 staging areas, and many of the active worksites on shore and near shore.

When OSHA finds safety problems on site visits or learns about them from workers, it brings them to the attention of BP and makes sure they are corrected. OSHA also raises its concerns through the Unified Command so they are addressed across the entire response area.

OSHA is ensuring that workers are provided, free of charge, appropriate personal protective equipment such as boots, gloves and other protective equipment as needed.

At this time, a key health concern of OSHA's is serious heat related illnesses. Fatigue, from working long hours, is also a problem.

So, what are the lessons learned from this catastrophe?

In general, I think we can agree -- and BP has admitted as much -- that the potential for disaster was grossly underestimated.

Herein lies a fundamental lesson in risk assessment that everyone here can carry back to your worksites, whether you work in a refinery or any other workplace that involves process safety: If the consequences of a single failure in your facility can be catastrophic, management must establish systems that ensure that every process operates safely.

Among the many other lessons from this disaster, we need to recognize that past injury rates are poor indicators of future risks of fires, explosions and other catastrophic events that have low probability but high consequences.

It has been noted with much irony that BP executives were on the Deepwater Horizon oil rig the night of the explosion, having just awarded the rig workforce a plaque for 7 years without a lost time injury.

As investigations into this historic disaster continue, there will be many more "teachable moments." We can only pray that we listen and learn.

Moving Forward

We must not think of the Gulf Coast oil spill, the Big Branch Mine tragedy, the Tesoro refinery fire in Washington State, or the string of hazards that OSHA recently has uncovered at U.S. Postal Service facilities across the country -- as isolated incidents or random events.

Collectively, these are worker safety issues and they point to a disturbing pattern of deadly neglect that our Nation has tolerated for too long as simply "the cost of doing business."

Well, today we say "that price is too high."

OSHA can't reverse this deadly trend alone. It's everyone's job, and there are things that everyone at this conference and at every worksite can do to make a difference and save lives.

• You can speak up at stakeholder meetings -- and bring your employers with you.
   
• You can participate when OSHA holds Web chats and send in your thoughts when we issue a Request For Information.
   
• When Congress proposes legislation that you like -- or don't like -- don't be complacent. Speak up, write a letter, send a message and be heard. Make your experience and your expertise count not only in your workplace but in Washington.
   
• Get involved in the rulemaking process. It's important to tell OSHA when you support a proposed rule, so that the naysayers won't be the only voices heard. It's also important to tell OSHA when you know how we can do a better job -- how else are we going to get things right?
   
• Most of all, let's continue to promote prevention through Injury and Illness Prevention Programs, Process Safety Management, training and education, and the free service provided in every state through the On-site Consultation Program.
   

Americans don't want to wake up to any more trench cave-ins, scaffold collapses, amputations or electrocutions. We don't need more refinery fires or mine explosions. We want a change in the health and safety culture of workplaces.

But change, if it's going to come, has to come from all of us, working together, locking arms, stiffening our resolve, and moving forward to support reform. We owe it to the fallen workers who cannot be with us today because they died on the job or are too weakened from a work-related illness to be here. We owe it to their families, we owe it to the men and women working today all across the Nation, and we owe it to future generations of workers.

For their sake, today and every day, we need to embrace the spirit of Mother Jones and "mourn for the dead" and "fight like hell for the living."

Finally, I want to congratulate ASSE on 99 years of dedication to worker health and safety. ASSE has been a bright and shining light in the fight for better working conditions, and OSHA is very glad to have you around as our "older brother."

Have a great conference and enjoy the great city of Baltimore.

Thank you.