New Criteria Proposed for OSHA's Expanded Evaluations of State Plans

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Three proposed methods for measuring state plan effectiveness have been added to the list of factors the Occupational Safety and Health Administration could consider when evaluating states' workplace safety programs.

The latest criteria join a list of 15 proposed measures already under review by a working group of OSHA and state officials (42 OSHR 532, 6/14/12).

The panel is expected to meet in mid-September to discuss putting into action new measures for assessing state program effectiveness and have them in place by Oct. 1, the start of the new fiscal year, OSHA told BNA in an Aug. 10 statement.

The new potential measures are:

• the percentage of initial inspections in which employees were represented or interviewed;

• the percentage of whistleblower complaints found to be meritorious; and

• the percentage of state inspections that involved public-sector workplaces.

Prompting the new criteria and ongoing discussions were state plan evaluations OSHA issued in 2010, which criticized how the 27 states and territories that run their own workplace safety programs were operating and meeting the requirement that they be “as least as effective as” federal OSHA (40 OSHR 329, 4/22/10).

State plan officials countered that OSHA did not use the same criteria to measure its own effectiveness; a report by the Department of Labor's inspector general agreed (41 OSHR 318, 4/14/11).

Union Support.

All three new measures were called for by union and worker representatives who attended a June 25 meeting at OSHA's Washington, D.C., headquarters to discuss how the agency should evaluate state efforts, or who later submitted written comments.

Peg Seminario, director of safety and health for the AFL-CIO, in a July 6 letter to OSHA called for the state plan evaluations to have separate categories for public sector workplaces.

“This will provide a more accurate comparison to federal OSHA benchmarks, which cover the private sector, and allow for an evaluation of the state plans' public sector programs,” Seminario wrote.

Eric Frumin, director of occupational safety and health for the labor coalition Change to Win, called for OSHA to expand the evaluation criteria to include employee involvement during inspections.

“Worker participation in inspections, particularly in non-union worksites, where the path to walkaround representation, a fundamental right under the [Occupational Safety and Health] Act, is less obvious than in unionized worksites where representation is clearly delineated,” Frumin told the agency July 6.

State Official Optimistic.

Butch Tongate, chairman of the Occupational Safety and Health State Plan Association and deputy secretary of the New Mexico Environment Department (which includes the state worker safety agency), told BNA Aug. 14 he hopes other changes will be made to the evaluations, although the proposals may not be fully in place by Oct. 1.

One significant change would be for OSHA to issue its detailed state plan evaluations, called Federal Annual Monitoring and Evaluation reports, every two fiscal years, instead of each fiscal year, Tongate said. Since the reports take nearly a year to complete, by the time OSHA presents its conclusions to the state agencies, it is too late for the states to react or make changes to be included in the report.

Also, OSHA should not expect state plans to act on draft recommendations, and recommendations should not be based on preliminary conclusions, Tongate said.

State plan officials also believe the federal agency should hold itself up to the same standards as it expects states to meet, and issue reports on the performance of OSHA area offices. If OSHA does not accept that proposal, the state officials could still collect area office information and do their own analysis of OSHA effectiveness, Tongate said.

Rejected Criteria.

Several other ideas proposed by state plan officials and groups representing employers or workers did not make the cut.

Lori Torres, Indiana's state commissioner of labor, told OSHA in a July 6 letter that the agency should consider more factors than just counting inspections and penalties. She recommended giving credit to states “doing innovative projects, or are willingly trying new processes for improvement.” She added that some perceive “that states are getting dinged for undertaking initiatives that are different than federal OSHA priorities.”

Robert Matuga, safety director for the National Association of Home Builders, took a similar position.

“NAHB believes that OSHA must develop a framework for determining the effectiveness of state plans by using a balanced approach,” Matuga said. “At a minimum, the framework should assess education, training and outreach; consultations; standards setting; and enforcement. This balanced approach, which addresses not only standards setting and enforcement but also other proactive safety and health measures, allows for flexibility for OSHA-approved state plans … .”

Evaluate Budgets, Language Skills.

Worker rights advocates called for several changes to OSHA evaluations that the work group has not put on the table.

Tom O'Conner, executive director for the National Council for Occupational Safety and Health, and Mary Lee Hall, senior managing attorney for Legal Aid of North Carolina Inc., recommended in July 6 comments that the agency determine how effectively states protect workers with limited literacy or English skills.

Gail Bateson, executive director of Worksafe Inc., which focuses on California issues, suggested OSHA examine whether states are hiring all the inspectors OSHA has funded and other budget issues. For California, OSHA funded 235 inspectors, but the actual number of inspectors “has hovered around 185-190,” Bateson wrote.

“Understanding the budgeting and spending aspects of a state plan can help explain possible root causes of deficiencies found in audits and measures using proposed draft indicators,” Bateson said in July 6 letter to OSHA.

By Bruce Rolfsen  


Details about OSHA's state plans program is available at http://www.osha.gov/dcsp/osp/index.html.