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The Miners Who Fought for Workplace Safety Have a Thing or Two to Teach OSHA Right Now

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In October 1993, Charles Patrick Hayes, or Pat, was working at a grain bin in Defuniak Springs, a small town in southern Alabama near Fairhope, where Pat was raised. Pat was knocking down corn from the walls of the silo when the crop caved off the sides and crushed him. Pat, just 19, suffocated to death. It took five hours to retrieve his body.

Pat’s father, Ron Hayes, quickly turned his grief into advocacy. A few months after Pat’s death, Hayes quit his job as an X-ray technician and manager of a clinical outpatient facility, and he founded a non-profit called the FIGHT Project, or Families In Grief Hold Together. For almost 30 years, Hayes traveled from Fairhope to Washington, D.C. (45 times by his count) pressuring legislators to improve federal worker safety regulations under the act, implemented in 1971, that created the Occupational Safety and Health Administration, or OSHA. According to Hayes, stricter enforcement of worker safety protocols may have saved his son’s life.

Although OSHA, which monitors most major employment sectors, including the agricultural, construction and service industries, has been criticized for lax regulations for almost 50 years, Covid-19 has brought worker safety back into the forefront of national news and rekindled the conversation around reform. If such reform is to happen, advocates say regulators can look for guidance from a conglomerate OSHA doesn’t monitor: the mining industry.

According to Tony Oppegard, an attorney who specializes in miner safety, the Mine Act is so much stronger than OSHA that “there’s no comparison.” Enacted in 1969, the inherent dangers in mining meant stricter regulations were implemented from the get go.

The Mine Act made mining much safer, and fatalities continue to decrease, with 24 on-the-job fatalities in 2019. While the decrease might be related to a loss of jobs—the coal industry has flatlined in recent years—experts say it’s also related to regulations in the Mine Act: For example, underground mines have to be inspected, at minimum, four times a year.

Meanwhile, OSHA guidelines have no requirement for the minimum number of inspections. That means a lot of businesses can essentially go unregulated. Along with a lack of inspections, there’s a lack of inspectors. While mines have about one inspector for every 50 miners, OSHA has just one inspector for every 79,000 workers. According to data compiled by the AFL-CIO, over 3.5 million injuries were reported to OSHA in 2017. In 2018, an average of 275 laborers died each day from workplace-related illnesses or injuries.

One of the biggest differences in these fatality numbers may also be a workplace right unique to the Mine Act: the broad right to refuse unsafe work.

Take Charles Howard. Howard worked in a number of underground coal mines around his home of Letcher County, Ky. since he was 18 years old. While Howard knew mining was dangerous work, as he grew older, he observed his supervisors making unsafe decisions to get the coal out cheaper and quicker, increasing the likelihood of injuries, illnesses and fatalities. Howard himself suffered multiple injuries while underground including a torn rotator cuff, a broken back, a traumatic brain injury and black lung—a fatal respiratory disease unique to coal miners.

So, between 1989 and when Howard retired in 2014, he fought hard for miner protections on the job site. This was easier under the Mine Act than OSHA because of a section called 105(c) which allows workers to refuse work they consider unsafe without getting fired—and quick temporary reinstatement pending a full investigation and hearing. Under 105(c), when one of Howard’s former employers, the Cumberland River Coal Company, tried to unlawfully fire him twice, Howard filed federal complaints with the help of Oppegard. After he filed, a federal review commission permanently reinstated Howard in his old job.

Under OSHA, this right isn’t nearly as strong. In order to refuse work, an employee has to prove they faced imminent danger of serious injury or death. That’s difficult to do in jobs that contain regular hazards. For example, in farming, workers could face silo explosions or extreme summer heat. In construction, laborers could fall off roofs or scaffolding. But it’s notoriously difficult to place the onus of these accidents on the employer.

But the Mine Act isn’t perfect, and OSHA can also learn from its failures. For example, under the act, safety violations can only lead to misdemeanor charges, not criminal convictions. So mining violations often mean little to no jail time for operators. When the Upper Big Branch Mine disaster, caused by a dust explosion, killed 29 West Virginia miners a decade ago, Don Blakenship, CEO of Massey Energy, spent just one year in prison.

According to Oppegard, a solution could be implementing an industrial manslaughter law under the Mine Act and OSHA, like one passed in Queensland, Australia. Now, if there’s criminal negligence in a mining death, Australian operators could receive 20 years in prison.

Howard, now 60 and retired, agrees that company management might feel more incentivized to protect workers if supervisors are personally responsible for injuries and illnesses on the job site. But, according to Howard, another problem is a lack of education around miner’s rights.

“They didn’t want me on the job because I stood up for my rights,” said Howard, who believes he was let go from multiple jobs because of his advocacy. “Other miners started saying, well we ain’t going to let them [the mining company] do that either.”

For Hayes, like Howard, one of the biggest problems with OSHA is not its scaffolding, but how the act has been implemented.

“I’ve always said OSHA is fair to business and workers both, but it’s been so mismanaged over the years,” Hayes said over the phone. “We’ve got to have a leader who knows what they’re doing.”

According to the AFL-CIO, under President Trump, a pro-business agenda means worker safety has been significantly deregulated since 2016, with budgets slashed and the number of OSHA inspectors at its lowest level in half a century.

Hayes, who recently suffered a series of strokes which he attributes to stress over reforming OSHA, is frustrated by the slow pace of change, but he’s not giving up. He has one wish for the legacy of his work: “I want to be remembered as the man who gave OSHA a heart.”

This blog originally appeared at In These Times on June 2, 2020. Reprinted with permission.

About the Author: Austyn Gaffney is a freelance writer from Kentucky who has written for HuffPost, onEarth, Sierra and Vice.


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Clash over government role in worker safety intensifies as businesses reopen

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Democrats and unions are trying to compel the Trump administration to aggressively police workplace safety as businesses from auto plants to retail stores begin reopening across the country. 

The AFL-CIO, which represents more than 12 million workers, on Monday asked a federal court to force the Occupational Safety and Health Administration to issue mandatory workplace safety rules, which the agency so far has refused to do. And House Democrats on Friday passed a coronavirus aid package that would require the agency to issue emergency safety requirements for employers.

The moves come amid a standoff that’s been brewing for weeks over who’s accountable if workers get sick on the job. Business groups say the economic downturn won’t end until places of work can reopen, and that can’t happen if employers are getting sued over exposure to the highly contagious virus. That message is gaining traction with congressional Republicans, who are pushing for liability protections for employers whose workers fall ill. And OSHA says new rules aren’t needed.

“Because of the enforcement authorities already available to it and the fluid nature of this health crisis, OSHA does not believe that a new regulation, or standard, is appropriate at this time,” an OSHA spokesperson said. 

Advocates for workers point to the data: Out of 3,990 Covid-19-related complaints that OSHA has received — many concerning a lack of personal protective equipment such as face masks, gloves and gowns — the agency had opened only 310 coronavirus-related inspections as of May 18, according to a Labor Department spokesperson.

Some 2,694 of those complaints have been closed, and the agency has not yet issued a single Covid-19-related citation, the spokesperson said. (One possible reason is that OSHA takes into account a business’s “good faith efforts” when deciding whether to issue a citation.)

According to the watchdog group Accountable.U.S., OSHA inspections have gone down since Covid-19 was declared a national emergency on March 13,from 217 per day on average to 60. 

OSHA maintains that the agency investigates every complaint and “will enforce workplace protection requirements where appropriate.”

“The agency also responded to double the number of inquiries related to Covid-19 as compared to all inquiries handled in March and April of the previous year,” a spokesperson said. 

But David Michaels, who was OSHA chief during the Obama administration, said last week at a member briefing for the House Education and Labor Committee, “OSHA is essentially sitting back and saying, ‘We can’t do anything.’ It’s really appalling to me.”

Even when OSHA receives a complaint that someone died from potential Covid-19 exposure in the workplace, the agency’s enforcement plan says that “may warrant an on-site inspection,” but only in high-risk industries such as health care.

Safety complaints regarding lower-risk industries, the enforcement plan says, should prompt a “non-formal” response from OSHA that entails notifying the employer of the hazard by email. “All other formal complaints alleging SARS-CoV-2 exposure, where employees are engaged in medium or lower exposure risk tasks … will not normally result in an on-site inspection,” the enforcement plan directs.

The agency says the measures are an effort to take “appropriate diligence to protect our own personnel.”

“That is not enforcement. That is nothing,” said Debbie Berkowitz, a former OSHA policy adviser during the Obama administration who is now with the left-leaning National Employment Law Project. “They are not responding to formal complaints and are simply sending letters to the employer.”

Labor Secretary Eugene Scalia maintains his department can enforce worker safety under a provision in the 1970 statute that created OSHA called the “general duty clause,” which requires businesses to maintain “a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The clause enables OSHA “to provide for the protection of employees who are working under such unique circumstances that no standard has yet been enacted to cover this situation,” the House Committee on Education and Labor said in 1970. Scalia has said the clause is “applicable” to Covid-19 safety enforcement, and that the agency will “use it as appropriate.”

But OSHA has rarely used the general duty clause in enforcement. According to the National Safety Council, it was applied in 1.5 percent of all OSHA citationsin fiscal year 2018 — in part, said Jordan Barab, who was OSHA deputy during the Obama administration, because it’s a cumbersome legal tool requiring a four-part legal test that makes it vulnerable to court challenge.

Worker advocates are now trying to force OSHA to become more aggressive. The AFL-CIO’s filing in the U.S. Court of Appeals in Washington, D.C., on Monday came after the federation and other unions petitioned the agency directly to issue a coronavirus safety standard in March. The agency did not act on their requests.

“It’s truly a sad day in America when working people must sue the organization tasked with protecting our health and safety,” said AFL-CIO President Richard Trumka. “But we’ve been left no choice. If the Trump administration refuses to act, we must compel them to.” 

The coronavirus stimulus bill that House Democrats passed on Friday would require OSHA to issue, within seven days of enactment, an “emergency temporary standard” — that is, mandatory coronavirus safety rules for employers. Through the crisis, OSHA has issued guidance documents, many in collaboration with the Centers for Disease Control and Prevention, to protect workers in meatpacking plantspharmaciesnursing homesdentists’ officesand various other industries. But these are all recommendations, not government directives.

The Democrats’ bill would also require OSHA to issue, within 24 months of enactment, mandatory workplace safety rules for future disease outbreaks. The Obama administration began work on such a standard in response to the H1N1 outbreak in 2009 but never completed work on it. That effort was shelved by the Trump administration.

To business groups and many congressional Republicans, more aggressive federal enforcement of workplace safety is a luxury that America can’t afford when business shutdowns have pushed unemployment up to Depression-era levels.

“We need to make sure bad actors are not given a break,” Senate Judiciary Chairman Lindsey Graham (R-S.C.) said Tuesday. “But the people who are trying to do it right, can reopen their businesses, their communities, schools and colleges with the assurance that if you practice the right procedures that you don’t have to worry about getting sued on top of everything else.”

But David Vladeck, a Georgetown Law professor, told senators at a May 12 hearing that providing blanket immunity to businesses, far from eliminating the cost of Covid-19 related injuries, would merely shift them onto workers and consumers.

“Immunity signals to workers and consumers that they go back to work, or they go to the grocery store at their peril,” Vladeck said, adding that businesses that safeguard employees and follow the recommended guidance will be protected from liability already.

This blog originally appeared at Politico on May 18, 2020. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter. Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.


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Texas Fertilizer Co. Cited for Safety Violations in Blast that Killed 15

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Image: Mike HallThe company that operated the West, Texas, fertilizer plant where 30 tons of highly explosive ammonia nitrate—stored in wooden sheds without sprinkler systems and near other combustible material—caught fire, exploded and killed 15 people, including 10 firefighters, in April was cited for two dozen serious safety violations by the Occupational Safety and Health Administration (OSHA).

OSHA issued the citations Wednesday but, because of the Republican government shutdown, the agency was unable to announce the action. Sen. Barbara Boxer (D-Calif.), chair of the Environment and Public Works Committee, announced the safety violations Thursday.

Among other violations, West Fertilizer Co. was cited for unsafe handling and storage of the anhydrous ammonia and ammonia nitrate that exploded and leveled large parts of the town of West. The company also was cited for not having an emergency response plan. OSHA is proposing fines totaling $118,300.

Also after the blast, it was revealed that the plant had not been inspected by OSHA since 1985.

Storage of ammonia nitrate is regulated by a “patchwork” of state and federal standards with “many holes,” the U.S. Chemical Safety Board (CSB) told a Senate hearing earlier this year.

Eleven years ago, the CSB urged the Environmental Protection Agency (EPA)—which hasn’t updated its rules on ammonia nitrate since 1997—to adopt its safety recommendations for storage, handling and use of the chemical.

In August, President Barack Obama issued an executive order for federal agencies, including OSHA and the EPA, to develop new rules to address the handling and storage of industrial chemicals, such as the ammonia nitrate fertilizer in the Texas explosion. Those rules were due by Nov. 1 but, because of the Republican government shutdown, they are likely to be delayed.

Thousands of facilities around the nation store large amounts of ammonia nitrate, especially in rural areas. That’s why new rules are desperately needed, said Boxer.

“All of these things that they are cited for are pretty much standard operating procedure with how you deal with these chemicals.”

This article was originally printed on AFL-CIO  on October 11, 2013.  Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.


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