Failures in OSHA Program Linked to Workplace Fatalities

A new Department of Labor report is highly critical of a Bush administration program designed to improve workplace safety. The report links poor enforcement to the deaths of workers at high-risk facilities – the specific targets of the special program. Poor quality data and inadequate training, inspections, and enforcement plagued the program.

Labor's Office of Inspector General (OIG) conducted the program audit and prepared the report dated March 31, entitled Employers with Reported Fatalities Were Not Always Properly Identified and Inspected Under OSHA's Enhanced Enforcement Program [1]. The focus of the report was the Occupational Safety and Health Administration's (OSHA) Enhanced Enforcement Program (EEP), initiated in 2003 to target employers who put their employees at risk of injury and death by being "indifferent" to their safety responsibilities. In 2008, the Bush administration modified the program criteria, resulting in fewer facilities being targeted by the program despite their past histories of indifference.

The program originally targeted the facilities because they committed violations that were serious and related to fatalities, they received citations repeatedly, or they failed to abate previously cited hazards. Once the facilities "qualified," they were to be the subjects of additional enforcement actions, such as more inspections and more stringent settlements with OSHA.

The OIG audited 325 federal inspections in the Atlanta, Dallas, and Chicago regions between Oct. 1, 2003 and March 31, 2008. Of those, 282 fell under the enhanced inspection program. The audit also included an analysis of OSHA's inspections from Jan. 1, 2008, through Nov. 19, 2008, after the 2008 criteria modifications.

The report contains nine findings regarding problems with OSHA's enforcement. For example:

• OSHA personnel did not properly classify 149 of 282 (53 percent) facilities in the audit, meaning that the facilities would not receive the proper range of actions under the EEP program, such as additional inspections.
• "OSHA generally did not inspect related worksites when company-wide safety and health issues indicated workers at other employer worksites were at risk for serious injury or death. OSHA did not properly consider related worksite inspections for 226 of 282 (80 percent) sampled EEP qualifying inspections." Thirty-four of these employers were responsible for an additional 47 deaths at other facilities.
• OSHA failed to conduct required follow up inspections at 52 percent of the 282 qualified facilities. Five of the worksites had subsequent fatalities.

The OIG report addressed the question of whether the 2008 modified criteria actually had an adverse effect on providing worker protections. Under the modified program, the criteria for defining a facility that qualified for the EEP program was changed to include information about past violations and fatalities. Under the modifications, however, the number of facilities included in the EEP program actually dropped "and increased the risk that employers with multiple EEP qualifying and/or fatality cases may not be properly designated due to the lack of quality history data." The report states:

Analysis of 2008 fatalities revealed 260 cases would not have been designated under the 2008 criteria, but would have qualified under the original EEP criteria. Because the fatalities occurred in 2008, 260 employers would not be subject to EEP activities and their employees may be at risk for injury or death before company-wide safety and health issues are addressed through OSHA enforcement.

According to an April 2 Washington Post article [2], the director of enforcement programs at OSHA sent a memorandum to OSHA's acting director March 19 indicating that the 2008 modifications resulted in a drop in the number of companies targeted by the program, from the peak of 719 in FY 2007 to 475 in FY 2008.

The OIG report concluded that overall, "full and proper application of EEP procedures" may have stopped or deterred hazards in facilities of 45 different employers where 58 deaths occurred. According to the report, an average of 5,680 workplace fatalities occur each year, citing these statistics from the Bureau of Labor Statistics (2008):

The report recommends the next OSHA administrator establish a task force to improve the program across the range of issues raised, provide better training to OSHA personnel involved in the program, and improve the agency's internal data management systems.

The OIG report should provide a significant benchmark against which to evaluate the Obama administration if OSHA continues the EEP. President Obama has not yet nominated a candidate to lead the agency.