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osha - beyond the politics by david weil
The Occupational Safety and Health Administration (OSHA) -- the federal agency whose mandate is to ensure "safe and healthful working conditions" for all workers -- has long been at the center of ideological battles over the power and reach of the federal government. In this Web-exclusive essay for FRONTLINE, Prof. David Weil of Boston University and Harvard's Kennedy School of Government looks at the political context in which OSHA has historically operated and the political realities it now faces. He then offers his analysis of where OSHA has been most (and least) effective in the past and what it will take to make OSHA more effective -- and our workplaces safer -- in the future.

Jan. 9, 2003

From its inception in 1971, few government agencies have been as maligned as the Occupational Safety and Health Administration (OSHA). Critics on the political right have regarded it as the embodiment of onerous government, the promulgator and enforcer of expensive and ineffective standards, an agency with a deep reach that mercilessly wields a penalty bludgeon needlessly sending many small businesses to bankruptcy court. At the same time, critics on the political left have often chastised OSHA for failing to fulfill its mission. They argue that the agency is stymied by too few inspectors and too small a budget to carry the weight of its legislative mandate: "[to] assure so far as possible every working man and woman in the Nation safe and healthful working conditions." They claim that OSHA is either the victim of Democratic administrations too timid, or Republican administrations too ideologically opposed, to exercise its authority to reduce workplace injuries and fatalities.

The truth lies somewhere in between these two polar views. OSHA has been perhaps uniquely buffeted by intense political battles, often between a Congress controlled by one party and an executive branch led by the other. OSHA has repeatedly been a lightning rod for efforts to reduce big government, most notably during the Reagan administration and during the tenure of Newt Gingrich (R-Ga.) as Speaker of the House of Representatives. Yet the agency has withstood repeated efforts to radically alter its basic structure -- either by Republicans like Rep. Cass Ballenger of North Carolina, who introduced legislation that would have removed OSHA's most important enforcement teeth (by virtually banning, for example, the use of unannounced workplace inspections), or Democrats like Sen. Edward Kennedy, who introduced legislation early in the Clinton administration that would have strengthened enforcement tools (for example, by providing greater protections for workers who trigger OSHA inspections, as well as raising penalty levels associated with violations of standards) and mandated workplace safety and health committees to augment the agency.

In fact, political offensives and counter-offensives have led over time to a relatively steady level of funding for OSHA, reflecting a broad public concern over occupational safety and health. At the same time, this political equilibrium leaves OSHA extremely limited in its ability to affect the more than 6 million workplaces that its statute covers. Over the course of its history, the agency has averaged fewer than 2,000 inspectors and has levied fines that are often trivial in relation to the costs of adopting technologies and practices consistent with OSHA standards, thereby providing employers little incentive to comply with those standards. As a result, the politics surrounding OSHA simultaneously protect it from evisceration while preventing it from becoming the fully effective regulatory body that the statute mandates.

David Weil is Associate Professor of Economics at Boston University School of Management and a Research Fellow at the Taubman Center for State and Local Government at Harvard University's John F. Kennedy School of Government. Professor Weil's research includes the areas of labor market policy, industrial and labor relations, occupational safety and health, and regulatory performance. He has published widely in these areas, and has also served as an advisor to the U.S. Department of Labor, the Occupational Safety and Health Administration, and other government agencies on a variety of projects.

Yet studies show that even within the boundaries set by these political forces, OSHA can induce very large changes in health and safety practices when directed at certain workplace settings. Reducing occupational injuries, illnesses, and fatalities therefore requires deploying OSHA's limited resources and potential regulatory tools strategically. At the same time, improving workplace health and safety must also rely on other workplace agents and incentives, given that the resources and authority provided to OSHA are unlikely to change in the near future.

The Political Landscape

Since its creation, federal funding for OSHA has been remarkably stable. As shown in the graph below, the overall appropriation varies relatively little across presidential administrations, averaging about $206 million per year in real dollars between 1973 and 2002. This stability reflects the push and pull between Congress and the White House. Efforts to radically trim budgets during the Reagan era were resisted by a Democratic Congress. Similarly, efforts to increase OSHA funding and enforcement during the Clinton era were thwarted by the Republican-led Congress (particularly following the election of the "Contract With America" Congress in 1994). Even the enforcement component of the budget appropriation -- often the focus of political battles -- has remained at roughly 42 percent of the overall appropriation throughout this period, never rising above 50 percent of appropriations or below 38 percent.

OSHA Budget Appropriations by Presidential Administration: 1973-2002 (Constant $)

OSHA's political stability derives in part from the countervailing presence of well-organized groups who have remained engaged in the struggle over OSHA and its appropriations. In particular, lobbying groups representing both small and large businesses have long pressed for reduced appropriations and enforcement activity, while the AFL-CIO and its labor-union affiliates -- particularly unions representing workers in the manufacturing and construction sectors -- have defended its budgets and pressed for expansion of the agency's scope and authority.

But OSHA's political resilience must also be understood as an expression of persistent public concern over workplace safety and health. People identify and sympathize with the issue of workplace safety, whether because of their own experience, or because of images conjured by stories of relatives, friends, or co-workers. The media can also be influential, as demonstrated most recently by the broad outpouring of concern and support for nine coal miners trapped in a flooded mine shaft for 77 hours at the Quecreek mine in Somerset, Penn. Although workplace safety has rarely, if ever, been a major issue in presidential campaigns, public opinion polls consistently indicate that it is an issue of considerable concern when respondents are asked about it specifically.

Does OSHA Work?

OSHA, then, is politically resilient -- it is not likely to disappear. But has it done much? The answer to this question is complex, and depends partly on how one measures the agency's success. Studies that attempt to measure the agency's impact at a macro level generally find that its impact on injury and illness rates has been limited -- and was stronger in earlier years of the agency's history than in more recent years. These studies, however, attempt to gauge the cumulative impact of OSHA across all industries and workplaces on all forms of workplace injuries and illnesses.

If one looks at OSHA's impact at a micro level -- that is, its impact on specific employers or workplaces over time -- one comes away with a more favorable impression of its effectiveness (or at least of its potential to improve workplace outcomes). Research shows that OSHA inspections and interventions can pack a significant punch in some situations -- particularly in those cases where its presence represents a "bolt from the blue" for employers that, prior to OSHA intervention, might not have paid much attention to safety and health issues. OSHA interventions, for example, are associated with large increases in compliance with key safety standards and significant reductions in injury rates in many manufacturing industries during the agency's first 15 years of operation. OSHA interventions also have been shown to change employer safety and health practices even in recent periods of time in cases where it has not engaged in inspection activity in the past.

At the same time, OSHA has a very limited ability to improve health and safety in those sectors or workplaces where it has placed relatively strong and continuing emphasis historically. Careful studies of the impact of inspections on large employers in sectors where OSHA has concentrated its efforts, such as specific manufacturing and construction industries, indicate that repeated OSHA inspections at the same job site have little impact on changing either compliance with standards or injury and illness rates. Thus, while "bolts from the blue" pack a significant punch, "rounding up the usual suspects" proves of limited impact.

This disparity in OSHA performance is problematic because of two recurring trends in the agency's history. First, because of the limitations of OSHA inspection resources relative to the number of workplaces covered by the agency -- approximately 2,000 inspectors to cover 6 million workplaces -- a significant percentage of enforcement actions tend to be triggered by worker complaints. But this reliance on worker complaints has tended to skew enforcement actions toward union rather than nonunion establishments. Where unions are present, workers are much more likely to exercise their rights to complain (or have a representative to do it for them). This has meant that union workplaces tend to receive higher levels of supervision, leaving the far larger nonunion sector of many industries under a far lower threat of inspection.

Second, despite efforts to target industries and employers with the highest rates of workplace problems, OSHA tends to focus its resources on large rather than medium or small employers. Larger employers, and those with union coverage, devote internal resources to address health and safety issues and have other incentives to invest in better workplace practices. As a result, a significant share of enforcement potential focuses on those workplaces that are probably the best actors, leaving fewer resources to address workplaces with the major problems.

How Should OSHA Regulate?

OSHA has a choice of tools at its disposal: enforcement, cooperative programs, information provision, and education. These tools can be effective interventions when used strategically at specific places and times. The problem has frequently been that the use of particular tools has been driven by the prevailing political winds, whether coming from Congress or the White House, rather than by a sustained effort to deploy the tools in those cases where they can have the greatest impact.

Enforcement: For example, along with the problem of enforcement targeting discussed above, actual penalties paid by employers for violating health and safety standards often have diverged markedly from what OSHA is legally authorized to do, leaving the actual penalties a fraction of what OSHA is allowed to levy. This arises from initial inspector reluctance to impose high penalties and from successful employer appeals of OSHA penalty decisions that lead them to be substantially reduced after the fact. The net effect is low penalties that reduce the incentive for inspected firms to change their health and safety practices. More importantly, lower penalties blunt the deterrent effect of enforcement by lowering the expected costs of not complying for all firms, whether inspected or not.

Cooperative Programs: Initiatives that seek to create management and worker safety and health programs, institutions, and workplace cultures can be extremely effective, particularly when tailored to specific problems and conditions. Yet such programs must build on situations where effective structures already exist for employers and workers to address safety and health (often in larger and/or unionized workplaces). They will not take root in workplaces with a limited capacity for, or interest in, dealing with health and safety. Nonetheless, efforts to encourage widespread cooperation as a palliative for most workplaces and industries has been a recurring theme of presidential administrations and congressional critics seeking to limit OSHA's traditional enforcement-based activities.

Information and Education: Seeking to provide information and/or worker education on the presence of workplace risks has similar potentials as well as limitations. Over time, government information on workplace injuries, and particularly fatalities, has improved. (In particular, the creation of the Census of Fatal Occupational Injuries by the U.S. Department of Labor's Bureau of Labor Statistics in the early 1990s was a major step forward in capturing the extent of fatalities across industries, although accurate reporting of workplace injuries and illnesses remains a significant problem.) Providing workers with information on injury and illness exposure, as well as education on methods to avoid injuries, has long been viewed as an attractive panacea and is frequently invoked as part of a political compromise on the issue. There is a body of evidence showing that providing information on safety and health risks can be effective in changing behaviors associated with worker safety -- or can lead workers to "sort" themselves into jobs where they receive higher compensation for facing the chance of a fatal accident.

Yet there is also abundant evidence (including the work of the two 2002 Nobel Prize winners in economics, Daniel Kahneman and Vernon Smith) that many cognitive problems exist that limit the usefulness of information provision. Translating information about low-probability "bad" events into changes in day-to-day activity turns out to be extremely difficult if workers cannot effectively integrate the information into their decisions. The very mixed success of OSHA's Hazard Communication standard -- which seeks to provide information on exposures to a wide range of workplace chemicals -- is but one example of the limits of using information as a means to improve safety and health.

The Road Ahead?

Where does this mixed legacy leave OSHA as it moves into its fourth decade of operation? OSHA remains a political hot potato. During the first two years of the current Bush administration, OSHA's budget and purpose were scrutinized by the White House and the Republican-controlled House of Representatives, much as it was under previous Republican administrations. Yet clearly, OSHA will not disappear under Bush and the Republican Congress, as signified by its increasing levels of appropriations in the first two years of the Bush administration. But OSHA undoubtedly will continue to move away from its core enforcement activities toward approaches stressing cooperation with employers and education for workers on the job site.

History suggests, however, that even within a different political landscape OSHA will never be granted sufficient resources to deploy enough inspectors, or be allowed to levy sufficiently high penalties, to fulfill its broad regulatory mandate. As such, those inside government who care about improving health and safety must deploy the agency's limited resources and its set of tools toward those workplaces with the most significant problems, and aim those interventions in places where they can have their largest effects on employer behavior.

At the same time, those outside the government who are concerned about workplace health and safety must recognize the need to build and strengthen other institutions and instruments that can reduce injuries and fatalities. For workers, this means strengthening unions as well as fostering institutions that represent workers in efforts to redress health and safety problems. For employers, this means improving the incentives provided by workers compensation and insurance systems to invest in better health and safety practices. And for academia and health care institutions, it means fostering continuing research in the causes, consequences, and methods for remediating new types of workplace dangers. Given the volatile political context under which OSHA seems destined to operate, only such a multi-pronged approach can lead to sustained improvements in health and safety.

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