How the States See It

OSHA can look to states for guidance in standards development and educational outreach.

• By Laura Swift
• Jul 01, 2011

The OSH Act's enactment in 1970 not only created the Occupational Health and Safety Administration and gave that agency the formidable task of protecting an entire nation of workers, it granted states the right to establish and govern their own health and safety programs. Section 18 of the OSH Act "allows any state that wishes to develop and enforce standards relating to occupational safety to create a state plan for standard development and enforcement." Today, state plans oversee 40 percent of the nation's workplaces, with federal OSHA responsible for the other 60 percent.

Before OSHA was established, much of the nation's workplace safety was governed by a combination of state and federal laws that lacked cohesion and effective oversight.

"Our state has had health and safety programs for more than 100 years," said Michael Silverstein, M.D., MPH, director of the Washington Division of Occupational Safety and Health. "The OSH Act just really kicked the entire enterprise into a much higher gear."

South Carolina was the first state to gain initial plan approval on Nov. 30, 1972, and was closely followed by Oregon, Utah, and Washington. The Kentucky OSH program was the first state plan to gain final approval in 1985 under revised federal benchmarks. Today, 27 states and territories have sought and obtained approval for state plans. Twenty-one states and Puerto Rico have plans that oversee both public- and private-sector employees. Four states and the U.S. Virgin Islands have plans that address public employees only.

As a parent agency, federal OSHA has high expectations for state-run programs. The OSH Act requires that "state plan standards and enforcement be at least as effective as federal OSHA in providing safe and healthful workplace to workers." In recent years, some state plans have come under fire by OSHA for subpar enforcement and oversight.

OSHA's most recent evaluation of state-run programs was initiated after a 2009 special report on Nevada's OSH program, which was prompted by numerous construction-related fatalities in Las Vegas. The review identified serious operation deficiencies in the state.

"Our goal is to the identify problems in state-run programs before they result in serious injuries or fatalities," Assistant Secretary of Labor for OSHA Dr. David Michaels said. However, in the same report, OSHA commended numerous states, including Cal/OSHA for its heat stress prevention campaign and North Carolina, Washington, and Maryland for adopting a cranes and derricks standard prior to OSHA.

State-run programs have the benefit of getting new standards passed more quickly than OSHA because there is less red tape to go through.

"It is a problem that standard setting happens at a slow pace," said Cal/OSHA Chief Ellen Widess. "As a state plan, we must be as effective if not better. In some respects we have been more effective." More often than not, however, Cal/OSHA and federal OSHA collaborate and help to expand each other's reach, Widess said.

"I think that our collaborative efforts are much more frequent than an occasional dispute over an issue or two," agreed Oregon OSHA Administrator Michael Woods. "I think it's important to allow state plans to continue to have the freedom to deal with state-specific issues and operate in a state-specific environment. States should act as laboratories for strategies that would be more cumbersome to try to implement on a national level. State and federal OSHAs are two different strategies to achieve the same goal."

Agency Oversight
To accomplish the goal of making workplaces safer, many state agencies are taking a proactive approach to educational outreach, standards development, and enforcement.

"My mission is to have an agency that not only responds to the myriad daily emergencies, but has some long-term vision to the future of new hazards, new industries, and new exposures," Widess said. "We want to have a strict, consistent, and fair enforcement policy that really focuses our attention on the serious hazards and where we see patterns of violations."

Cal/OSHA has been particularly successful in implementing new standards. Widess said California was the first state to pass a hazardous substance information act, which requires employers to inform employees about exposures to hazardous substances through MSDSs, labels, training, or a hazard communication program. She said California also was the first state to enact an aerosol transmissible disease standard, which is geared to protect emergency response, public safety, and health care workers against bloodborne pathogens and diseases through infection-control procedures.

Cal/OSHA has conducted several successful education and training campaigns, most notably in heat stress prevention. The agency said its heat stress campaign improved the percentage of employers who are complying with regulations from 35 percent in 2006 to 76 percent in 2010. As a result, heat-related deaths declined from 12 in 2005 to two last year.

Washington DOSH is making efforts to strengthen its education and outreach initiatives. "Washington is one of the states that has the 23(g) consultation program," Silverstein said. "We're paying more attention to electronic forms of education and outreach. One of the things we're trying to increasingly do is organize our material by industry as well as by subject so that an employer can go to one place on our website and get a whole variety of information and education."

Oregon OSHA is focused on increasing its inspections and consultations. "We try to make all of our enforcement contacts educational," Woods said. "Every contact with an employer and a worker is an opportunity for education. We do quite a bit of training and education activity in relation to health care. We work with a group called the Oregon Coalition in Health Care Ergonomics that focuses particularly on issues with patient handling."

Industry Insight
In order to develop new standards and provide effective training, state agencies have to keep track of burgeoning industries that create a new crop of occupational hazards, such as musculoskeletal disorders and workplace violence. In Oregon, construction, logging, agriculture, and a combination of high-tech and heavy manufacturing are high-hazard industries.

"We still see significant hazards in logging," Woods said. "Logging in Oregon is much safer than it was 40 years ago, but it's still a dangerous industry, and unfortunately we still see injuries and fatalities every year. In health care, we see issues particularly around patient handling and ergonomics, and that issue certainly isn't going away. If anything, it's a growing problem.

"Even when industries are different in the future, the hazards and how to control them aren't fundamentally different. The principles of confined space management and the principles of how to address LOTO are consistent across industries, and those are the areas we need to focus on," he said.

In April, Washington became the first state to require protection for health care workers who handle chemotherapy and other hazardous drugs.

"When we look at the number of inspections and consultations, the intensity of our education outreach, we have tended to put a lot of that emphasis in construction and relatively little in health care, where the numbers and rates of injuries are just as high," Silverstein said. "That really gives us more than a hint about what we need to be doing over the next few years. We have to be on the lookout for both new industries that have new hazards, as well as new technologies that bring hazards to a variety of industries. There's been a lot of attention paid recently to nanotechnologies, so I think we have to be on alert there. And there are all kinds of related biotechnologies that are developing that create potential hazards."

California's high-hazard industries include agriculture, construction, dairy, warehousing, and goods transportation. "We have an enormous concentration of warehouses in the Inland Valley, where we have some very serious problems that the U.S. Department of Labor and Cal/OSHA are cooperating on with our labor standards division. In the service industries, we have ergonomic problems. To deal with the burgeoning new green jobs industry, we want to be sure that these new jobs will not pose health and safety threats to workers, who will need to be well trained," Widess said.

Old Meets New
As technological innovations continue to drive the creation of new industries, a demand for new workers, combined with the expanding older workforce, will create a varied labor force with specialized needs.

"The Baby Boom population has now broached the 60-year-old barrier, so over the next 15 years there are going to be more old people in the workforce," Silverstein said. "Employers and unions really have to be attentive to this and make sure that the workplace is adapted to the needs of older workers."

A recent study conducted by NIOSH and the Bureau of Labor Statistics found that the length of absences from work increased steadily with age and was highest for the oldest workers, with a median of 11 and 12 days for workers ages 55-64 and older than 65, respectively -- even though the injury and illness rate of these older workers is lower than the rate of all workers combined.

"Older workers had higher rates of falls on the same level, fractures, and hip injuries compared with younger workers and workers of all ages," the study states. "Employers and others should take steps to address specific risks for older workers such as falls (e.g., by ensuring floor surfaces are clean, dry, well-lit, and free from tripping hazards)."

"I think we need to pay attention to the aging workforce, but we also need to pay attention to the young workforce," Woods said, "and we need to handle their entry and interaction into the workforce in a way that takes into account the fact that they're going to need to be productive members of the workforce for the next 40 or 50 years."

States will need to focus on training and educating old and new workers in the future. "The aging workforce will require a lot of training and education of new workers taking their place. The new workforce may provide a good opportunity to create a culture of prevention," Widess said.

The Future? Partnerships
Since the OSH Act was passed, it's evident that state-run agencies have played a major role in improving workplace safety, even with budget constraints and the occasional criticism from federal OSHA.

"Our resources are limited, so the more partnerships we have, the better," Widess said. "In the future, we'll need to be nimble and ready to adapt to the constantly changing dynamic workforce. We will only be able to accomplish our mission through partnerships."

"It may very well be that OSHA should look very different in 40 years than it looks right now," Silverstein said. "I think the work that OSHA's doing right now leading toward a general rule that requires effective safety and health programs is something that I hope is going to be in place, and I think it's going to change the safety landscape."

This article originally appeared in the July 2011 issue of Occupational Health & Safety.