Public Employee Safety and Health: Follow-Up

I received a rather (justifiably) angry letter from the Director of the Maine Department of Labor, Bureau of Labor Standards regarding my article about lack of OSHA coverage for public employees. I’m reprinting the letter here:

I think it only fair to start with a disclaimer. I'm the Director of the Maine Department of Labor, Bureau of Labor Standards and have over 30 years service with the Bureau. I take umbrage when you list Maine as a state "where it's legal to kill public employees." Maine has had a non-federally approved public sector occupational safety and health enforcement program since 1969. The rules we enforce are basically the OSHA regulations adopted by reference with some additions to address some areas of public sector employment that are unique, such as firefighting. While the direct enforcement staff may seem small - two compliance officers - that actually supplies better coverage than federal OSHA in Maine. There are about 4,200 public sector establishments, so we have one inspector per 2,100 establishments. There are around 43,200 private sector establishments and 13 federal OSHA inspectors, so their ratio is one per 3,300 establishments. And we do issue fines. While the fines may not be as eye-catching as some OSHA fines, there are probably as frequent and it doesn't take as much to get the attention of public officials as it might a large private employer.

While it is true that the Legislature and Governor could eliminate the program tomorrow, the same is true of federally-approved state programs. It would just take longer - like the day after tomorrow. While it hasn't always shown up as additional funding, the program does have political support. As an example from this Legislative session, a bill to upgrade the firefighter safety standards was reported out of Committee unanimous ought-to-pass and easily received the necessary two-thirds in both the House and the Senate. We're not going away any time soon.

In addition, Maine does have an occupational manslaughter law which has been used, although not against a public sector employer to date.

The bottom line is that public employees in Maine do have a right to a safe and healthy workplace and some viable protection for that right.

William A Peabody, Director
Maine Department of Labor
Bureau of Labor Standards

Before I respond, I need to explain better how all of this works.

When federal OSHA was created, public employees were not covered. The federal government covered all private sector employees, but states were given the option of developing a “state plan” and taking over health and safety enforcement, as long as their programs were “at least as effective as” the federal program. Their programs would receive up to 50% of their funding from the federal government. In addition, these state plans were required to cover their public employees. Twenty-one states have full state plans that cover private and public sector employees.

States were later given the opportunity to cover their public employees only, under a federal approved (and co-funded) program, leaving their private sector coverage to federal OSHA. Three states have taken this option: Connecticut, New York and New Jersey. The other 26 states, plus the District of Columbia either have no program at all, programs on paper, but without funding or staff, programs that cover some public employees (e.g. state employees), but not others (e.g. city and county employees), and a few states, like Maine, that have relatively well funded and staffed programs.

Now, a couple of responses to Mr. Peabody’s letter.

First, in my experience, Maine had one of the better non-federally approved public employee health and safety programs. That said, as they say in Congress, I'd like to "revise and extend" my previous remarks. I owe Mr. Peabody and his co-workers an apology. I did not mean to imply that the state of Maine, or the few other states that have reasonably well-funded public employee programs (as opposed to Texas or Florida), consider it legal to kill public employees. In retrospect, it would have been more accurate for me to list "States Where The Federal Government Considers It Legal To Kill Public Employees."

And it's also true, as Mr. Peabody says, that even federally approved state-plan states can give their state plans back to the federal government, along with public employee coverage. In fact, however, no federally approved state has ever done this. California gave up its state plan in the 1980’s (it was later restored due to a referendum), but kept the public employee portion. Other states occasionally threaten to give up their state plan (none have actually done so since California’s experience), but all have pledged to hold on to the public employee portion.

Florida, on the other hand, which did not have a federally approved program, actually did get rid of its public employee program.

In addition to having an easier time getting rid of public employee coverage, non-federally approved programs do not have to be “at least as effective as” the federal plan. This means that there are no funding or staffing requirements, making them much more vulnerable to budget cutbacks than the federally approved plans.

Finally, non-federally approved plans don’t have to cover all public employees, nor do they have to enforce federal OSHA standards. They can pretty much cover whomever they want under whatever standards they want with as few inspectors as they think they can afford.

Ultimately, however, whatever the quality of these programs, we’re still left with the same outrageous treatment of public employees as second-class citizens, not deserving of the same rights that private sector employees enjoy. In fact, even in many federally approved public employee programs, public employers are not fined or penalized for violations of the law. The feds have determined that even without penalties, these programs are "at least as effective" as the private sector coverage. Go figure.

While some states, like Maine, may do better than others, the bottom line is that the law of the land considers it completely optional to protect the health and safety of public employees and guarantee that they have safe workplaces.

As we move into the 21st century, there is absolutely no reasonable justification for this state of affairs. None.

After re-reading Janet Chapa Morris's letter, twenty-two years after I first went to work for AFSCME, I’m angrier than the day I started.