While safe workplaces and healthy workers are important, the U.S. Occupational Safety and Health Administration (OSHA) has not contributed to the furtherance of either.

Businesses have spent over $100 billion attempting to meet OSHA mandates since the agency was created in 1970. How much have workers benefitted from this spending? Consider this: the number of serious accidents (those involving losing one or more day's work), has stayed at 4 per 100 workers during the past quarter century. In other words, OSHA has been of little benefit to workers' safety.

What OSHA has done is provide columnists and editorial cartoonists with a seemingly endless supply of raw material, with plenty of opportunities for poking fun at bureaucratic nonsense. "Did you hear the one about the OSHA inspector who required separate 'his' or 'hers' employee toilets for a two-person business where the employees were married to each other?"

The fundamental problem with OSHA is not that it has silly rules. It does, of course, but the agency's shortcomings are basic--its origins. In writing OSHA's enabling statute, Congress overlooked the key factors that cause on-the-job hazards, few of which are amenable to government manipulation.

For example, inexperienced workers have high accident rates. Also, a drop in the unemployment rate generates a rise in the work-injury rate. Why? At slower rates of production, there is more time for maintenance and repair of equipment. During expansions, by contrast, there is more pressure on workers to produce and less time for maintaining machinery. Moreover, new hires--more common in times of expansion--tend to be less experienced, and those who have been out of work for some time may take a while to bring rusty skills up to speed. On reflection, those results should not be surprising, but government standards do not address these important concerns.

Under the circumstances, OSHA often has been counterproductive. Many companies had professional safety departments long before the OSHA act was enacted. After all, worker accidents are costly to employers as well as employees. If the agency has had any direct impact, it has been to divert much of the focus of corporate safety units from their traditional task of training workers in safer procedures to following bureaucratic procedures--keeping abreast of changing regulations, filling out the forms correctly, meeting with the inspectors, and responding to their charges.

The second shortcoming of OSHA is that Congress did not carefully examine alternative ways of improving safety in the workplace. Instead, it simply opted for setting national standards. But it is naïve to expect that any group of mortal men and women sitting in Washington, or anywhere else, can develop a single set of standards for each sector of the economy that will apply sensibly to the great array of small, medium, and large companies that exist in every American industry. No person, no matter how knowledgeable or intelligent, has the capability to do that. Neither can any centralized group of officials.

Moreover, the OSHA approach of putting the total responsibility for job safety on the employer is unrealistic. It ignores the need for also placing responsibility on the employees, especially those whose careless practices endanger other employees.

A fundamental rethinking of the need for the Occupational Safety and Health Act is long overdue. Achieving a safe and healthy work environment is a business imperative; companies and workers, not government officials, are in the best position to know what is required. Some companies reduce job hazards by buying new equipment. Others do it by better training of workers and supervisors. Still others initiate new work procedures. Yet other employers might provide financial incentives to their employees--for example, paying them to wear hearing protection instead of spending much larger sums, as OSHA prefers, on so-called engineered noise containment.

The basic reason to overhaul (and maybe eliminate) OSHA is not to cut costs, although that is a laudable objective. Rather, it is to get rid of bureaucratic obstacles to efforts to reduce job-related illnesses and accidents. The burden should be on the supporters of OSHA to make the case for its continuance.

The place to start is to examine successful safety programs. They tend to have a common set of characteristics: get top management to recognize safety as an important business concern, involve workers as well as management, find out more about the nature and causes of on-the-job injuries and health hazards, and focus on the truly serious safety problems. On reflection, it is clear that is a task for business management, not governmental regulators.

CITE:  Moberly, Richard, OSHA:  Unfulfilled Expectations. William & Mary Law Review, Vol. 49, p. 65, 2007

---

Richard Moberly is  a Professor at the University of Nebraska College of Law.