Tuesday, March 07, 2006

OSHA To Workers: You Don't Need No Stinkin' Training

Thank you Elaine Chao, John Henshaw and Jonathan Snare for the fine legacy you have left American workers. You've managed to issue only one major standard in the past five years (under court order) and you managed to screw it up, from top to bottom. Way to go.

Almost all of the focus on OSHA's recent hexavalent chromium standard was on the agency's failure to set the safest Permissible Exposure Limit (PEL) for the cancer-causing chemical. OSHA set the limit at 5 micrograms of chromium per cubic meter of air, instead of the 1 microgram limit that OSHA had originally proposed in 2004, or the lower limit advocated by Public Citizen, the organization that sued OSHA for failure to issue the standard.

But it turns out that the PEL controversy is not the only place that workers are getting screwed by the new standard. In fact, even ignoring for a moment the PEL problem, OSHA's hexavalent chromium standard sets back the cause of workplace safety by decades.

When OSHA was created in 1971, about 600 chemicals were regulated and given "permissible exposure limits" -- the amount of the chemical workers could be exposed to over a workday. OSHA has updated a few of these standard over the past 35 years. But the new OSHA chemical standards contain more than just a PEL. They also include long sections that address air monitoring, methods of compliance, medical monitoring, communication and training, and other items – in other words a complete health and safety program for the chemical.

The Bush administration's new hexavalent chromium standard breaks now ground in this area -- and not in a good way. Let's take a look at training and communication, for example.

While most previous chemical standards have training and communication sections, the HexChrome standard has only a “Communication” section which is composed of three main requirements: 1) that the employer must comply with the Hazard Communication (Right to Know) Standard which requires training about chemicals, labeling and provision of Material Safety Data Sheets (MSDSs), 2) that the employer ensure that employees "demonstrate knowledge" of the contents of the HexChrome standard; and 3) that the employer ensure that employees understand the purpose and a description of the medical surveillance program required by the standard.

Previous OSHA chemical standards, on the other hand, contained a number of additional requirements addressing such items as the timing of initial training, when employees must be retrained, worker literacy and specific hazards to be stressed in the training. When OSHA first proposed the HexChrome standard in 2004, it contained many of these items, but when the final standard appeared two weeks ago, almost everything was dropped.


"Consistency" and "streamlining," says OSHA in the preamble to the standard. Almost all of the omitted items already appear in other OSHA standards, so why repeat them in the HC standard?

But instead of "streamlining" the standard and making it simpler, OSHA has actually made the standard much more complicated, increasing the likelihood that workers will not understand their rights, or how to take full advantage of the standard to ensure they are protected.

For example, unlike most previous chemical standards and unlike the 2004 proposal, OSHA has decided that there is no need to explicitly require the employer provide training that is "understandable to the employee." In the past, this wording was considered to be important to ensure that training would be conducted at a level and in a language understandable to employees.

So what happened? OSHA decided that because the Hazard Communication Standard already states that training must be "comprehensible," the HexChrome standard doesn't need to repeat it. But actually, the Hazard Communication Standard doesn't say anything about training being comprehensible or needing to be done in the worker's language if the worker doesn't understand English. To figure that out, you'd have to go to the OSHA interpretation letter of April 4, 1988. Sounds pretty "streamlined," doesn't it? Any immigrant worker who doesn't understand English should be able to figure that out. Duh!

Similarly, OSHA decided not to mention in the HexChrome standard that employees have the right to obtain their exposure records because.
Such information on employees' rights is already required to be transmitted to employees under paragraph (g)(1) of OSHA's Access to Employee Medical and Exposure Records standard, 29 CFR 1910.1020. Therefore, OSHA sees no need to duplicate that requirement in the final Cr(VI) standard.
No, indeedy. Why duplicate a employee's right to get his or her exposure information, when all he or she has to do is run home, fire up the computer and search to see if maybe there's already a standard that provides those rights. What could be simpler? Or more streamlined?

OSHA also sees no need to specify when the employee must be retrained, a requirement that appears in every other chemical standard. The 1997 Methylene Chloride standard, for example, states that employees must be retrained whenever changes in procedures might increase employee exposures to the point where they may exceed the chemical's "action level" which triggers monitoring and medical surveillance.

So why was it left out of the HexChrome standard? Because OSHA's Hazard Communication Standard already requires re-training under certain circumstances. Well, not really. Actually, to understand that retraining is sometimes required, you'd have to read OSHA Compliance Directive, CPL 2-2.38D, Inspection Procedures for the Hazard Communication Standard (and who hasn't?)

Workers would then understand, as the HexChrome standard's preamble clearly explains, that the Hazard Communication Standard has been interpreted to mean that employees must be retrained under certain circumstances:
since employees are required to be aware of the hazards to which they are exposed, this would mandate that as new exposures occur because of changes in the workplace employees must be made aware of them. Similarly, it would mandate additional training as necessary to maintain employees' understanding of the safe use and handling of Cr(VI) as this is critically linked to their awareness of hazards to which they are exposed.
Crystal clear?

Although the Hazard Communication Standard requires that workers be trained about the health effects of all chemicals they are exposed to, OSHA decided in previous standards to require the employer to emphasize certain serious health effects of the regulated chemical as well as information about the quantity, location, manner of use, release, and storage of the chemical and the specific operations in the workplace that could result in exposure.

In the current HexChrome standard, however, OSHA decided that such information would be needlessly redundant. But that wasn't an issue in 1997 when OSHA issued the Methylene Chloride (MC) standard:
While the HCS [Hazard Communication Standard] addresses training about the hazards of a chemical and appropriate precautionary measures, there are other items of training that are specific to the MC standard requirements and the determinations made in this rulemaking regarding MC. As such, it is important to ensure that the already-required HCS training is supplemented with information and training specific to MC.
As a matter of fact, for the first time in any of its full chemical program standards, OSHA doesn’t really even require training at all, only that the employer ensure that workers "demonstrate knowledge" of the standard, and particularly the medical surveillance section.

Anyone involved in worker training over the past decade knows the enormous advances that have been made in applying adult learning techniques to workplace safety training, resulting in effective training programs where workers are actually able to retain and use the material they've learned in their training classes. The programs funded under the NIEHS Worker Education and Training (WETP) program have led the way in developing innovative training techniques and sophisticated methods to evaluate the effectiveness of the training.

Not that OSHA's noticed, apparently. With this standard, OSHA has taken a major step back into the past. As far as OSHA's concerned, there is no difference between "communication" and "training" all forms of communication are equal. This is what's known as a "performance-oriented" requirement that allows employers full power to figure out what works best for his or her employees.

According to the HexChrome preamble:
Hands-on training, videotapes, slide presentations, classroom instruction, informal discussions during safety meetings, written materials, or any combination of these methods may be appropriate .
Slap in a short video tape and give the workers a 10-question true and false test? Sounds good. A fifteen minute “informal discussion” in the lunch room? Whatever.

Contrast this with the preamble of OSHA's Methylene Chloride standard:
It should be noted that the information and training requirements in the final rule have been separated from each other rather than being addressed together, because they deal with different ways of conveying information. "Information" transmittal is simply that -- a passive process of making information available to employees should they choose to use it. In some cases, this may be done in writing or some other simple manner of information transfer.

"Training," on the other hand, is not a passive process. The information provided to employees in training requires them to comprehend it and subsequently to use it in the performance of their duties in the workplace. There are many different ways to accomplish training effectively, but it cannot be a simple transfer of information such as handing someone a written document
Who needs the benefit of decades of years of study, investigation and experience in how adults best learn about workplace safety hazards, programs and procedures when every employer can figure it all out for himself?

Back in the pre-Bush days when training was still required in OSHA standards, the training had to be done on work time. But with no training requirement, there doesn't seem to be anything preventing the employer from handing a worker a CD or video to take home at the end of the shift to study for the test the next day.

And of course, with no training, you don’t need that old burdensome requirement that employers keep training records, despite OSHA’s previous advice that
“Records can provide evidence of the employer’s good faith and compliance with OSHA standards. Documentation can also supply an answer to one of the first questions and accident investigator will ask: “Was the injured employee trained to do the job?”
How ironic. We've been plagued for the past five years with an administration that has made a high art of whining about how complicated OSHA standards are for small businesses, and how their most important priority is making these regulations clear and understandable for employers -- while making their only chemical standard impossibly complicated for workers.

We have a Secretary of Labor who told the National Federation of Independent Business that it is unfair to expect small businesses, trapped in the "regulatory jungle," to understand and comply with complicated OSHA regulations:
It’s not fair that you are expected to know every rule and regulation without any decent help from the people who write them, promulgate them, and penalize you if you aren’t abiding by them!

It’s not fair to you, and it’s not fair to the American worker.
But I guess it is somehow fair to force American workers to research interpretive letters, locate compliance directives, and track down several different OSHA regulations in order to be able to effectively protect themselves from a cancer-causing chemical -- instead of just putting it all under one umbrella as all previous administrations (Democratic and Republican) have done with their regulatory protections.

And the result, to again quote the Steelworkers' Mike Wright: "Workers will die."

Thanks guys. You should all be impeached.