The New OSHA

urviving the anti-regulatory fervor of the 104th Congress wasn't easy for any federal agency, but the Occupational Safety and Health Administration had it worse than most.

The tiny agency with a mammoth mission-protecting the health and safety of 100 million American workers-faced threats of huge budget cuts and a congressionally mandated overhaul that OSHA officials insisted would have crippled the agency.

By taking gradual and determined steps toward reinventing its troubled self, OSHA convinced its critics that the "New OSHA" was worth not just preserving, but strengthening.

As former OSHA chief Joe Dear, who launched OSHA's reinvention and steered the agency through the stormy period, says, "It was a great ending [to a] terrible movie."

The "great ending" has made OSHA a darling of the Clinton administration's National Performance Review. "OSHA is a big success in the making," says Bob Stone, NPR project director. What makes the agency's story so interesting, he says, is that "the contrast between what they used to do and what they do now is so crisp."

What OSHA used to do almost exclusively was inspect work sites in response to employee complaints or randomly, fining employers who violated safety and health standards. Unfortunately, employers who were trying to do the right thing but had trouble deciphering complex regulations were treated as severely as those flagrantly violating the law. At the same time, countless violators went unpunished.

OSHA's limited resources, which amount to $325 million this fiscal year, never allowed for inspecting individual work sites more than about once every 80 years. So the agency couldn't please anyone: Industry criticized OSHA's harshness, while labor groups reproved it for not reaching enough violators.

"In the old days," Stone says, "It was OSHA against the world."

New Approaches

The new OSHA is making friends with its former adversaries. OSHA's goal is to apply the reinvention philosophies of partnership, cooperation, common sense and customer service to accomplish more with its limited resources. Compliance officers still respond to employee complaints and do some random inspections. But the agency also offers extensive assistance to employers who honestly want to meet or even exceed standards but need help doing so. This way, OSHA believes, it can reserve enforcement resources for serious offenders.

There's nothing complicated about the strategy. Field office staff study injury and illness statistics to pinpoint dangerous job categories or industries. Then they team up with business groups and labor unions to find solutions.

A recent cooperative project spearheaded by OSHA's St. Louis office, for example, sought to curb high numbers of serious roofing accidents. Local OSHA staff worked with the Roofing and Siding Association of Greater St. Louis, the Roofing Contractors of Greater St. Louis and labor unions to train workers to recognize and avoid dangerous situations. Within six months, roofing injuries had dropped 70 percent, according to contractor statistics.

To encourage similar programs, OSHA now judges field offices on how well they reduce injury and illness rates in their jurisdictions rather than on how many citations they issue, as it did in the past.

John Henshaw, director of quality, compliance assurance, and safety and health for chemical giant Monsanto Co., believes OSHA's partnership approach is breeding trust between the regulators and the regulated. "Four years ago, the general sense of industry was, 'You shouldn't call OSHA for help or you'll have OSHA [inspectors] knocking at your door,' " he says. But after experiencing more open and helpful OSHA staff at the local and federal levels, Henshaw says, "I'm more willing to talk to them."

Even the process of setting workplace standards is about cooperation these days. "The President's reinvention [plan] said that regulators should negotiate, not dictate, standards," Dear says. "We took him seriously." Indeed, OSHA has been inviting industry, labor and academia representatives to help develop proposed rules in the hope of avoiding future court challenges to final standards. For example, the Steel Erection Negotiated Rulemaking Advisory Committee, comprised of contractor, labor and government representatives, drafted regulatory language OSHA plans to use as a basis for its upcoming proposal on steel erection safety.

"I think that was an excellent way to go about a standard," says Ken Sanders, president of Horizon Steel in Columbia, S.C. Under the old system, OSHA staffers with relatively little knowledge of the industry would have developed the proposal, he says. The advisory committee generated a practical, workable proposal that both industry and labor endorse, says Sanders.

Still, labor groups, while generally pleased with the agency's more open standards-setting process and efforts to target resources on the worst offenders, believe increased compliance assistance has come at too great a cost: Inspection numbers have plummeted.

From 1994 to 1996, inspections fell 43 percent to 24,024, a record low for OSHA. Fewer inspections mean less incentive for employers to comply with safety and health standards, says AFL-CIO director of health and safety Peg Seminario. As reinvention continues, Seminario hopes OSHA will "look at developing the [worker] side of the equation."

OSHA officials note that despite declining enforcement numbers, the most recent Bureau of Labor Statistics survey of workplace injuries and illnesses showed a drop in reported cases from 6.8 million in 1994 to 6.6 million in 1995. Still, they agree that inspections are too few and plan to boost them to 31,500 this year and 34,000 in fiscal 1998. They blame the recent drop on budget cuts, two government shutdowns and an attendant drop in employee morale, all of which occurred in 1995 and 1996.

Killing the Tooth Fairy

To appreciate OSHA's accomplishments, one must go back to the early days of the Clinton administration, when OSHA, like all federal agencies, was creating a reinvention agenda. It was no accident that former Secretary of Labor Robert Reich picked Dear to lead OSHA's reform. As director of the Washington State Department of Labor and Industries, Dear had been building alliances among government, labor and industry at the state level for several years. Reich wanted him to do the same at OSHA.

"I got hired to fix [OSHA]," Dear says. "That was clear from my first interview with Secretary Reich." Dear expected fixing OSHA to be difficult, since it meant shifting a bureaucratic mind-set focused on counting inspections and citations to one concerned with improving workplace safety conditions. But he welcomed the challenge. "What I never figured on," Dear adds, "was the 104th Congress."

The attacks on OSHA began almost immediately after the Republican takeover of Congress in 1994. Horror stories about OSHA enforcement, some warranted and some not, always had circulated among business owners and their Republican allies. But for the first time those allies were in positions of real power. OSHA regulations, they argued, were strangling American businesses, while doing little to improve health and safety.

One of their favorite stories was "OSHA killed the tooth fairy." The agency, they said, wouldn't allow dentists to give children their pulled teeth. OSHA's bloodborne pathogens standard, designed to protect workers from diseases like hepatitis and AIDS, does require dentists to use extreme caution when dealing with blood. But nothing in the standard forbids them from giving clients their appropriately handled and washed teeth.

Nevertheless, myth distorted fact and OSHA found itself on the defensive. In 1995, Dear appeared before congressional committees 12 times. The year before he'd only been asked to testify four times.

"The primary effect of the Republican takeover was to require an enormous amount of time in the defense of the agency's fundamental ability to enforce and set health and safety standards," Dear recalls. "It was frustrating because that was time away from the reinvention efforts which I think are the answer to the valid criticisms that labor and management have. Every minute I spent fending off the tooth fairy was an aggravation because it meant I couldn't [work on changing the agency]."

Calls for legislative reform were loud and aggressive. Republicans remembered the strongly pro-labor OSHA reform bills Democrats had debated during previous years. This time, it was their turn. The two leading Republican bills, introduced by Rep. Cass Ballenger of North Carolina and Senators Nancy Kassebaum of Kansas and Judd Gregg of New Hampshire, aimed to change OSHA's focus from enforcement to compliance assistance.

Ballenger's was by far the more extreme measure of the two. Labor sympathizers dubbed it "The Death and Injury Enhancement Act." Even the Chemical Manufacturers Association, a powerful industry group, thought it went too far. Small business proponents, however, loved it. "OSHA is the most feared agency in the federal government," said Rep. Tim Hutchinson, R-Ark., during a hearing held by the House Economic and Educational Opportunities Subcommittee on Workforce Protections. "It's high time it's reined in."

Ergonomics

Yet another factor spurring the fury against OSHA was Dear's plan to develop an ergonomics standard to help prevent cumulative trauma disorders (CTDs) such as carpal tunnel syndrome. For Dear, the fact that CTDs represent the fastest growing category of occupational illness and injury made them prime material for regulatory attention. For Republicans in Congress, however, Dear's plan came to symbolize all that was wrong with OSHA and regulation.

In March 1995, OSHA released for public review a draft ergonomics proposal that would have affected 2.6 million workplaces. No one liked it. Labor groups thought it was too weak. Industry leaders attacked the underlying science, insisting there was no conclusive proof that cumulative trauma disorders were caused by work environments.

The debate, Dear remembers, "was kind of like health care in a microcosm. We had a big proposal in an environment that wasn't conducive to sweeping [solutions] to large problems."

Republicans in Congress responded to employers' outrage by attaching restrictive riders to a 1995 measure rescinding some federal spending and the agency's 1996 appropriations bill forbidding it to develop an ergonomics rule. When word got out that the agency was still investigating nonregulatory ways to address the problem, Rep. David McIntosh, R-Ind., chairman of the House Government Reform and Oversight Committee's Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs, called a hearing specifically to address the matter.

"Are OSHA's ergonomics efforts over or not?" an angry McIntosh asked Dear. Once again, the OSHA chief stressed that CTDs were injuring thousands of workers every year at a huge cost to businesses. The riders did not prohibit OSHA from studying the problem, he added.

So upset were conservative congressmen at what they considered OSHA's flagrant refusal to abide by their wishes that Rep. Henry Bonilla, R-Texas, tried to attach an even more restrictive rider to the agency's fiscal 1997 appropriations bill. That provision would have prevented OSHA not only from developing a rule, but even from collecting data on CTDs. But on a 216-205 vote, the House struck down the rider and labor groups and OSHA claimed a huge victory. OSHA was free to move forward with ergonomics.

By this point, Dear had learned too much about Washington politics to react with anything but cautious optimism. "I don't think we got a ringing endorsement that the Congress wants to see a very large comprehensive ergonomics regulation soon," he says.

OSHA now plans to take a more gradual approach to ergonomics. While it expects to eventually develop a standard, the agency wants to first focus on education and research in an effort to defuse controversy surrounding the issue. "We're pretty much starting over," says agency communications director Stephen Gaskill.

Changing Impressions

The ergonomics battle showed that OSHA would be harder to overhaul than its critics had imagined. Part of the reason was that public support for dramatic reform simply wasn't there. As the 1996 election approached, polls showed that while voters favored less regulation in general, they didn't like strong attacks on health, safety and environmental protections.

A Council for Excellence in Government poll, for example, found that while 73 percent of people surveyed said government had gone too far in regulating business and interfering with free market systems, 72 percent also agreed that workplaces are safer as a result of government regulations than if business had been left to its own devices.

Polls aside, OSHA watchers believe the agency itself deserves much of the credit for quelling critics. One of the first signs that OSHA's message of change was getting through to the Republican Congress came during hearings on the agency's fiscal 1996 appropriation. Dear expected to get pummeled by committee members. Instead, Rep. John Porter, R-Ill., chairman of the House Appropriations Subcommittee on Labor, Health and Human Services, and Education, publicly commended Dear's efforts.

To this day, Porter remains sold on OSHA's newfound willingness to help employers comply with safety standards, says his press secretary. "Mr. Porter looks at this [approach] as an effort to keep people from being hurt. That's at least as important as enforcement. After all, the goal here is to prevent injuries."

Another turning point came during an oversight hearing held by Rep. Christopher Shays, R-Conn., chairman of the Government Reform and Oversight Committee's Subcommittee on Human Resources and Intergovernmental Affairs, in October 1995. As Dear remembers it, "One real fire-breathing [Republican] freshman opened his line of questioning saying he'd met with employers in his district and couldn't get them to say anything bad about OSHA."

As impressions of OSHA grew more positive, prospects grew dimmer for Republican OSHA reform proposals. Ballenger's bill never got out of subcommittee. He proposed a second, more moderate version, which also died in subcommittee. The Kassebaum/Gregg bill passed out of the Labor and Human Resources Committee but never reached the Senate floor for a vote.

For Dear and OSHA, all the reform hearings, riders and other struggles with Congress were worth it. "We had a stormy period for sure with the arrival of the 104th Congress," Dear says. "But at the end of that Congress, there were no changes in the Occupational Safety and Health Act and OSHA got a seven percent budget increase. I think that's a vindication of OSHA's reinvention program."

Why it Worked

Dear cites several reasons today's OSHA is stronger and better liked than ever. "The first key to reinvention," he says, "is opening the agency's management up to the ideas of the front-line staff. And then giving those staff the tools, training and support to find better ways of working. . . . It works in the private sector; it works in the public sector."

Also important is a willingness to adjust new programs to accommodate legitimate criticism, he says. Take the Cooperative Compliance Program (CCP), a cornerstone of reinvention that gives high-hazard employers a chance to work with OSHA to improve their safety conditions without risk of citation. When OSHA first began the program in Maine, it used workers' compensation data to identify for inclusion in the program work sites with the highest numbers of claims.

But as OSHA extended the program to other states, employer groups cried foul. Total numbers of claims do not give accurate pictures of safety and health conditions, they argued, rates of injury and illness do. Missouri employers were especially vocal, causing both of their Republican senators to demand explanations from Dear. As a direct result of those discussions, OSHA now targets CCP participants using injury and illness rate statistics collected under a data collection program begun last year.

While Dear still thinks targeting employers with high numbers of workers' compensation cases was a valid approach, he accepts the strategy's failure. Why did Maine employers buy into the program, while those in other states refused? "The answer is because a whole lot more discussion had occurred at the state level in Maine before the program was rolled out," Dear says.

The process of convening affected parties to explain the program in detail is essential, he adds. "Even when an agency has the solution, you can't just impose it on people. We got in a big rush to replicate the program and we skipped some of the preparatory work."

Ultimately, reinventing any agency demands finding consensus on core principles. "I came to Washington believing that worker health and safety is a great issue [on which] to build a common ground of understanding between business and labor," Dear says. "I think attention is often drawn to the shrillest, the loudest, the most extreme voices. But even our critics want to see worker health and safety protected. We got the debate focused finally on finding a better way. A debate about means, not ends."

Dear left OSHA in January to become chief of staff for Washington Gov. Gary Locke. Much of OSHA's credibility as a reinvented agency is tied to Dear's leadership, so it's an open question whether OSHA can maintain its momentum without him.

The agency can expect a close watch from industry and labor. Employers who haven't yet experienced a reinvented OSHA program still need to be convinced that real change is happening.

Meanwhile, unions won't rest until the agency directs more attention to strengthening worker protections. OSHA officials plan to listen to both sides, refining policies as reform continues. "Reinvention is still a new idea," notes Gregory Watchman, acting head of OSHA. "We're still mapping the best course to take. And we still have a long way to go."

Susannah Zak Figura is a Washington-based journalist.