May/June 1988
U.S. lawmakers may believe that enforcement efforts best address workplace dangers, but officials of other countries have different ideas.
By David M. Wassum
David M. Wassum is director of risk management for the Institute of Scrap Recycling Industries, Washington, D.C.
American debate about workplace safety and health regulation is hot. Proponents of the regulatory approach say stronger regulations are needed to protect workers and, ultimately, correct market imperfections and injustices. Skeptics argue that regulations do not accomplish their objectives, but do impose a severe drag on the economy; deregulation should be the goal.
So far, the regulation proponents are winning. The American approach to workplace safety and health emphasizes rule enforcement rather than education. This approach differs from that in other industrialized countries, many of which place the greater emphasis on not only education but business-government cooperation.
What works best? This review of various national regulatory philosophies and implementation practices suggests possible alternatives, although proof of any method's success in reducing workplace injury and illness is almost universally lacking.
The American Why
Historically, workplace safety and health regulation in the U.S. has been addressed primarily by individual states. Massachusetts adopted the first workplace safety law in 1867, and most states subsequently enacted legislation regulating hazards in specific industries and creating agencies to implement the laws.
But there were perceived inadequacies of this system: fragmented regulation and enforcement, unacceptably high numbers of injuries and illnesses, and inadequate compensation. These perceptions led to the enactment of the Occupational Safety and Health Act (OSHA) in 1970. The Act's ambitious goal was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions."
By now, most employers are generally familiar with OSHA’s operations. Enforcement of workplace rules and standards plays a significant role. The importance of enforcement is emphasized in the language of the law: "If ... [a compliance officer] believes that an employer has violated a requirement ... , he shall ... issue a citation to the employer." (Emphasis added.)
Although the OSHA law provides for efforts to teach employers and employees ways to prevent injury and illness, this function clearly is subservient to the enforcement function. The law established a separate agency, the National Institute for Occupational Safety and Health (NIOSH), for purposes of research and education. But while the current year's appropriation for OSHA totals $235 million, the NIOSH appropriation is $70 million. Primary responsibility for workplace consultations has been delegated by OSHA to the states. These measures maintain a rigid separation between personnel devoted to enforcement and those charged with education and consultation responsibilities.
The U.S. system of workplace safety and health regulation differs in many respects from systems of other countries. Elsewhere, general guidelines and flexible interpretations often take the place of specific rules and rigid enforcement. However, despite placing greater, emphasis on "voluntary" health and safety codes, most countries still provide the necessary means to enforce compliance, through legal sanctions if necessary.
Great Britain: Regulation Reconsidered
Compared to OSHA, the workplace safety and health system in Great Britain seems a picture of cooperation. Although workplace safety has been regulated for well over a century, a profound reevaluation of the country's regulatory structure took place in 1974 with the enactment of the Health and Safety at Work Act. Like OSHA, this law imposed specific responsibilities on employers and provided for the adoption of workplace safety and health rules or "codes of practice." However, according to one European observer, L. Parmeggiani, writing in the May-June 1982 International Labour Review, the British regulatory philosophy differs considerably from the U.S. model. These rules "require nothing beyond what is enforced if the objectives fixed by legislation can be attained by other equally efficient methods."
The law requires each employer of five or more employees to develop and implement a workplace safety policy addressing specific conditions in that workplace. Employers must also recognize workplace "safety representatives" appointed by the local trade union and establish workplace safety committees upon request. Duties of the safety representatives include workplace inspection, investigation of hazardous conditions, and resolution of worker complaints.
Inspectors in the Health and Safety Executive, the country's equivalent of OSHA, have broad enforcement powers similar to those of OSHA compliance officers: right of entry into the workplace, authority to conduct inspections and investigations, and ability to issue citations when violations are discovered. Inspectors also have the authority to shut down operations in situations involving imminent danger.
Despite these inherent powers, British inspectors typically try to avoid rigid enforcement actions in the workplace. In distinct contrast to their OSHA brethren, British inspectors view their primary responsibility as "the provision of skilled and impartial advice and assistance," according to Giandomenico Majone's report in the Fall 1982 Journal of Health Politics, Policy and Law. This outlook undoubtedly reflects the official posture of the country's central authority, the Health and Safety Commission. In the publication, Plan of Work 1985-86 and Onwards, released in 1985, the Commission stated: "Our approach to policy on safety and health in the future will be one under which legislation is seen as only one of a number of possible approaches to securing satisfactory performance and one which, in view of the demands it makes on resources throughout the safety system, is not to be preferred if other means will do."
Decentralization the Rule in Canada
In Canada, safety and health regulation is less centralized than in America or much of Europe. Although a federal law exists, strong provincial legislation is the norm. Creation of joint employer/employee safety committees, with varying responsibilities and powers, is typically required.
For example, in addition to imposing mandatory standards, the Ontario Occupational Health and Safety Act of 1979 requires certain employers to establish workplace safety and health committees, whose duties are to identify hazards, investigate accidents, perform periodic inspections, and make recommendations. If an employer fails to act on a committee recommendation, the matter must be referred to the government, which determines whether a violation is involved.
In small workplaces where committees are not mandated, the employer must recognize health and safety representatives chosen by the employees or the union. These representatives have the same duties and responsibilities as a committee.
Australia: Cooperation the Goal
Despite presence of a National Occupational Health and Safety Commission, actual regulation of workplace safety and health in Australia is also decentralized. The primary role of the National Commission is to set standards, conduct research, and provide education. Responsibility for enforcement of occupational health and safety regulations is predominantly reserved for the states.
Australian inspectors, like those in Great Britain, regard "education and persuasion" as more important than strict enforcement. A 1985 study by John Braithwaite, published by the Australian Institute of Criminology, explored attitudes among Australian inspection personnel. The report revealed an overwhelming rejection of the adversarial approach so prevalent in the U.S. Cooperation, rather than mere enforcement, was almost universally hailed as the proper method for promoting workplace safety and health.
Despite the noncoercive approach of typical Australian inspectors, individual state laws can be extremely stringent. For example, the state of New South Wales enacted, in 1983, one of the country's most comprehensive workplace safety and health laws. Applicable to all employers, the law theoretically imposes absolute liability for the health and safety of employees. It mandates that each employer "ensure the health, safety and welfare at work of all his employees" and "provide or maintain [workplaces] that are safe and without risk to health." (Emphasis added.)
The 1983 law requires that an employer of 20 or more employees establish a workplace health and safety committee composed of at least 50 percent employees and chaired by an employee. Committees have the power to make workplace inspections, investigate accidents, and make recommendations to the employer. If disagreements exist between the committee and the employer, the matter is referred to the government's health and safety agency for resolution.
The state's law also includes a novel approach to enforcement of workplace safety and health rules.
Workers Rule in Sweden
Sweden's Working Environment Act became effective in 1978. Many of the law's requirements are similar to those of the other countries surveyed. For example, workplace "safety stewards" must be appointed in any workplace employing five or more employees, and safety committees, with majority representation by employees, must be created in any workplace employing 50 or more employees. However, in contrast to most other countries, the Swedish law invests employee representatives with considerable powers, rather than limiting them to primarily advisory duties.
For example, reflecting the country's emphasis on worker education, safety stewards undergo comprehensive training funded by a special tax on employers. Training includes explanations of the laws and how they can be implemented, general safety and health subjects (e.g., noise control, machine guarding, hazardous chemicals, etc.), and inspection techniques. Trained stewards have the right to inspect workplace information and documents pertaining to safety and health, and must be consulted by the employer before any changes can be made. They have authority to order work stoppages in cases involving imminent danger or serious risk to life or health. Safety stewards also have effective veto power over any new building construction, since government authorities are required to consult with them prior to issuing any building permit.
Safety committees have similarly broad responsibilities in implementing a company's safety and health program. They establish long-term goals, plan daily workplace health and safety activities, and have ultimate authority in the hiring of a company's plant physician and safety director.
Despite the broad scope of the country's safety and health law, government inspectors exhibit considerable flexibility in enforcing workplace requirements. Inspectors have a dual role in Sweden: to give advice and encourage cooperation between labor and management, and to enforce the regulations--through penalties if necessary.
Like their counterparts in Great Britain and Australia, Swedish inspectors are generally reluctant to issue citations, believing that more safety and health improvements can be achieved on a friendly, nonadversarial basis than through coercion. As a result, inspectors usually issue verbal instructions carrying no legal force. Typically, as noted by Barbara Jo Fleischauer in the Winter 1983 Hastings International and Comparative Law Review, less than 1 percent of the inspections conducted in the country result in the issuance of written orders to correct violations. (In contrast, approximately 60 percent of OSHA’s inspections result in citations, according to the September 14, 1987, issue of Business Insurance.)
Does OSHA's Regulatory Program Work?
Proponents of health and safety regulation in the U.S. cite several potential benefits of the OSHA system. A reduction in work-related injuries and illnesses is implicitly assumed in nearly all cases. However, scarcity of data makes it difficult to evaluate this perceived benefit. Although some studies have found a significant relationship between OSHA inspections and reduced workplace injury rates, other studies have found no relationship. At least one study concluded that OSHA inspections have a negative impact on workplace loss rates.
A February 11, 1988, Wall Street Journal article concluded that "OSHA policies have at best a small effect--up to 10 percent--on the rate of injuries and fatalities." Regardless of the merits of any of these studies, taken as a whole they suggest that the loss-reduction benefits of OSHA regulation, if any, are few.
The same paucity of data in other countries makes it equally difficult to draw conclusions about the effectiveness of health and safety regulations.
Detractors of regulations allege they have had adverse effects on industry. In particular, some believe ubiquitous regulation was a major contributor to the economic slowdown experienced in the U.S. during the mid- to late 1970s. Although most studies of the slowdown have found effects caused by numerous factors--energy price increases, a recession, a decline in capital investment, reduced research and development, decreased productivity of the workforce, various regulatory burdens--few studies have identified OSHA regulations as a major contributor.
However, one exhaustive 1986 study, Wayne B. Gray's Productivity versus OSHA and EPA Regulations, concluded that these regulations had a significant negative impact, accounting for nearly 40 percent of the average slowdown in U.S. industrial productivity observed during the 1970s.
Future Trends
In comparing the regulatory schemes of the U.S. and some other industrialized countries, two significant differences are apparent. In contrast to the adversarial approach followed by OSHA in the U.S., most other countries prefer to promote cooperation between employers and the government.
Although each country's regulatory body provides a "big stick" for use against recalcitrant employers, OSHA is more willing than most to employ the stick as its first option. In the other countries surveyed, official policy typically encourages an educational, noncoercive approach and government inspectors typically reflect this attitude. OSHA inspectors, in contrast, mirror the agency's official attitude that enforcement is the primary function, with education and consultation of secondary importance.
Part of the reason for this difference is institutional. The OSHA law requires an emphasis on enforcement. The inspector's sole duty is to enforce the law; education and consultation are left to others. Inspectors in other countries typically have a dual role: education and enforcement. As a result, they place greater emphasis on persuasion than on coercion.
Cultural factors may also contribute to intercountry differences. American businessmen historically have protested governmental intrusions in the workplace. In contrast, many other countries have a long history of governmental involvement in business. As a result, employers in those countries may accept as routine some government actions which would be viewed as intrusive and coercive in the U.S.
Another significant difference between the U.S. approach and that of other countries is the extent of employee involvement in workplace safety and health matters. This situation may also reflect cultural differences and varying traditions of trade unionism in the countries surveyed. In many other countries, employee committees and designated employee safety representatives are specifically required by law. Such employees may be limited to an advisory capacity only, or (in the Swedish example) may actually wield considerable decision-making powers. These approaches contrast sharply with OSHA’s operation. Although lip service is paid to employee participation in workplace safety and health, the real ball game is between employers and the government.
This situation may change as OSHA implements its ambitious new program to educate workers and provide them with access to workplace information. The Hazard Communication Standard, with its heavy emphasis on worker training, conceivably could lead to employee demands for more active involvement in workplace operations. How OSHA will respond to potential cooperation between employer and employee remains to be seen.
[SIDEBAR]
Coping With OSHA: ReMA Can Help
For American businessmen, compliance with OSHA requirements is often a demanding, costly, and time-consuming process. Unlike the situation in other countries surveyed, even a trivial violation of OSHA’s rules can lead to immediate legal problems.
Scrap recycling operations face particular difficulties. Many of OSHA’s rules are not easily adaptable to the industry’s workplace conditions. In addition, scrap recyclers, as small businesses, often may lack the manpower to review and evaluate OSHA’s myriad requirements.
To address these potential problems, the Recycling Materials Association (ISRI) has developed a wealth of materials for its members. Training films, safety guides, and employee informational literature, as well as guidelines for compliance with OSHA requirements, are designed to ease compliance burdens and aid in developing effective loss control programs. Practical advice is also available to individual members through telephone consultations.
ISRI, through its Safety Committee, continues to create new materials to address the needs of its members. For further information about ReMA programs, contact the Washington headquarters at 202/466-4050.
[SIDEBAR]
Sweden’s Emphasis on the Human Side
Perhaps the most unique aspect of Sweden’s law is its requirement that “working conditions must be adapted to individual physical and mental capabilities.” The emphasis on psychosocial aspects of the work environment was designed to “attain labor relations whereby work can be experienced by the individual as a meaningful and enriching part of life.”
To comply with the law, employers not only must address normal health and safety concerns (e.g., noise, chemicals, machinery-guarding, etc.), but also must consider the way work is organized. Factors such as the pace of work, job-related stress, opportunities for personal development, and interpersonal relationships are all theoretically subject to the law’s requirements. Significantly, however, rules implementing these psychosocial objectives are issued as guidelines, and are not legally binding on employers.
[SIDEBAR]
New South Wales Workplace Safety
The Australian state of New South Wales provides for legal action against company managers in many cases involving workplace safety and health violations. In any enforcement action brought under the law, a violation by a corporation is assumed to have been committed by “each director of the corporation, and each person concerned in the management of the corporation.”
In practice, the scope of this potential liability is reduced by the defenses available to the accused. For example, the law provides for exoneration when it is “not reasonably practicable to comply” or when a violation was the result of “causes over which [the accused] had no control.” Likewise, an individual charged under the law can prove his innocence by demonstrating lack of knowledge of a violation, or by showing that he tried unsuccessfully or was not in a position to prevent the violation.
[SIDEBAR]
The U.S. Model
Since OSHA’s inception in 1970, it has evolved into one of the country’s most powerful and controversial regulatory agencies. Although arguments persist about OSHA’s effectiveness (or lack of), few dispute its impact on the American workplace.
Safety and health regulation in the U.S., as practiced by OSHA, is characterized by:
Mandatory rules and standards, with voluminous details;
Emphasis on workplace conditions, rather than work practices;
Emphasis on use of engineering controls, as distinct from personal protective equipment, to reduce or eliminate employee exposures to hazards;
Minimal employee involvement, limited essentially to filing complaints about employer practices;
Targeting of “high hazard” workplaces;
Unannounced inspections, with citations for initial violations;
Strict enforcement policies, based on formal rules and procedures; and
An adversarial relationship between business and government.