OSHA in Illinois:The agony and the ecstasy

Created by the U.S. Congress in 1970, the Occupational Safety and Health Administration was established to provide jobs that are " free from recognized physical harm.' Since its inception in Illinois in 1973, OSHA has been criticized by both labor and management. Labor feels it is under funded. Management would like more consulting services

FEW FEDERAL regulatory agencies have provoked as much furor in the business establishment and raised as many scare stories as the Occupational Health and Safety Administration(OSHA). With its approximately 4,400standards, most of which are extremely detailed, OSHA often, conjures up visions of hard-headed OSHA inspectors making surprise visits and nitpicking employers about such. minor irregularities as the height from the floor of fire extinguishers. It is also widely believed that an OSHA inspector can shut down an entire job site on the spot for a single violation of the OSHA standards OS HA has been lambasted by labor for being too weak in its enforcement policies, and criticized by industry for being too stringent. The truth, as usual, probably lies somewhere in the middle.

OSHA inspectors are required by law to make unannounced inspections, but they do not have the power to shut down a job site during the course of an inspection. OSHA can advise both employees and employers that work conditions constitute an imminent danger of serious injury or death, and if steps are not taken to abate these dangers, the agency can seek court action to close the site. But to date, this has never happened in Illinois, and it is a rare occurrence elsewhere in the United States.

The Occupational Safety and Health Act was passed by Congress in 1970 in response to what seemed an alarmingly high industrial accident and death rate, a rate that the House Labor Committee said showed " no signs of changing. " Indeed, a full three per cent of the employed civilian work force were injured seriously enough each year to require sick leave. At the time that OSHA was passed, the cost to industry amounted to $100,000 man-years of production annually. The manufacturing injury rate had risen from 11.1 hours of lost time per million man-hours in 1957 to 15.2 by 1970. It was also estimated that only 25 per cent of workers exposed to health hazards were adequately protected and that 390,000 new cases of occupational disease a rose each year. In 1970. one doctor testified that asbestosis (the scarring of the lungs by asbestos dust), a disease that doctors " knew well 40 years ago, is still with us just as if nothing was ever known. " Congress also felt. that existing state legislation designed to promote worker safety was generally weak, or not well enforced. And the variations in safety requirements from state to state tended to penalize those states whose concern for safety was strongest. Congress passed the occupational safety and health legislation by over whelming margins in both houses.

Safety and health standards
The act was designed to provide approximately 57 million employees of about 4.1 million employers with jobs which are " free from recognized physical harm. " The act, which took effect on April 28, 1971, covered all U.S. workers except those employed by federal, state and local governments. OSHA itself was set up under the Department of Labor. The secretary of labor was directed to establish and enforce safety and health standards. The National Institute of Occupational Safety and Health (NIOSHA) was set up under the Department of Health, Education and Welfare to conduct research on occupational health and safety. Some 4,400interim standards were established, and the secretary of labor was empowered to issue additional standards when necessary. But public hearings must be held on the new standards and consideration must be given to (1) the feasibility of the

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standards, (2) the latest scientific evidence, and (3) previous experience under other laws. In its first four years of operation OSHA promulgated only four major new standards. The secretary can also implement temporary standards to protect employees who are exposed to " grave danger. " These temporary standards, however, can only remain in force for a maximum of six months; the procedures for regular standards must be followed in order to extend or make them permanent. OSHA regulations are found in the U.S. Code of Federal Regulations, Title 29(approx. 800 pages).

Variances and violations
An employer may seek a permanent variance from a standard, but only after an inspection and a hearing which his employees may attend. To be granted a variance, the employer must establish clearly that working conditions are as safe and healthful as required by the normal standards. An employer can also seek a temporary variance after a hearing if it can be shown that compliance with the standard by its effective date is impossible because of labor or material shortages. Employers must also demonstrate that all available steps to safeguard employees against the hazard covered by the standards have been taken, and that compliance will be effected as soon as possible. A temporary variance, including extensions, cannot last more than two years, and the economic impact of compliance can not be considered in the decision to grant a temporary variance, according to the Senate Report on Occupational Safety and Health Act of 1970.

OSHA's standards are purposely specific and diverse. For example, there are some 140 regulations pertaining to wooden stepladders. Of its some 4,400 standards, 2,100 apply to all industries with the balance applying to construction and maritime industries. When inspections (always unannounced) reveal a violation, the employer is cited, ordered to abate the condition within a certain time period, and may be fined. Serious violations, those which create substantial probability of death or serious injury, can result in a fine of up to $1,000 for each violation. Willful or repeated violations may result in a civil penalty of $10,000 for each violation, and failure to correct a violation during the abatement period may result in a fine of $1,000 per day. The only criminal penalties provided are for willful violations that lead to the death of an employee which can subject an employer to a fine up to $10,000 and a jail sentence of six months. Despite these penalties, the average penalty per violation during OSHA's first six months of operation was about $25.

An employer may appeal a citation to the Occupational Safety and Health Review Commission, a three-member body appointed by the President. From there an employer can appeal to the Federal Court of Appeals. Of the some9,130 cases decided by the end of 1974,the Review Commission allowed the employer more time to abate a violation in 90 per cent of the cases.

Under the OSHA act states were permitted to adopt their own safety and health programs and standards as long as the state designated an agency to administer the pro gram, gave the agency sufficient legal authority, and funded the program to enforce standards that were " at least as effective " as the federal standards. In writing this provision Congress intended to provide those " safety conscious " states with the opportunity to maintain their current programs and perhaps even set up standards more stringent than the federal standards.

Getting into the way out - ISHA defines an 'exit' An exit: "...that portion of a means of egress which is separated from all other spaces of the building or structure by construction or equipment as required in this subpart to provide a protected way of travel to the exit discharge." An exit discharge: "... that protion of a means of egress between the terminationof an exit and a public way." A means of egress: "... a contituous and unobstructed way of exit travel from any point in a building or structure to a public way and consists of three separate and distinct parts the way of exit access, the exit, and the way of exit discharge. A means of egress comprises the vertical and horizontal ways of travel and shall include intervening room spaces, doorways, hallways, corridors, passageways balconies, raps, stairs, enclosures, exits, escalators, horizontal exits, courts and yards."

But in Illinois, as in many other states, living up to the federal standards has not been easy. Shortly after the OSHA act was signed into law, the Illinois Labor Laws Study Commission recommended substantial changes in respect to the state's occupational safety and health program. For years the Illinois Department of Labor and the Industrial Commission had been enforcing the state's own Health and Safety Act of 1936 which required inspections and safety standards to be promulgated by the Illinois Industrial Commission. The study commission recommended removing the Industrial Commission from the picture, but both labor and management were opposed, so there commendations of the commission were never adopted.

The Illinois OSHA
Gov. Richard B. Ogilvie instead, in1971, designated both the state Department of Labor and the Industrial Commission to receive funds for the promulgation and enforcement of standards in order to bring about Illinois' compliance with OSHA. For the interim period, the state submitted an application to the U.S. Department of Labor for a section 18(h) agreement to allow the state to enforce its own standards while a state plan was developed to comply with OSHA. This was granted and later that year the state received a planning grant of $290,516from the Federal Department of Labor to develop its plan. The Department of Labor encouraged all states to develop their own plans, in the belief that states would be more responsive to their own problems. The idea was that if the state programs worked out, then federal involvement would be reduced.

Illinois also agreed with the U.S. Department of Labor to assist the federal inspectors in inspection visits to target industries. In December 1971 the state submitted a letter of intent to OSHA agreeing to submit its state plan within six months. In the mean time, legislation was passed by the General Assembly (P. A. 7.7-1644) to amend the Health and Safety Act of 1936 to provide unrestricted authority for the Illinois Industrial Commission to promulgate occupational health and safety standards and allow all federal standards to become part of the rules of the Industrial Commission. The reporting

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The state OSHA included state workers and featured an occupational health research plan that was never funded. Like federal OSHA it came under fire from both management and labor

of occupational injuries, illnesses and fatalities, which were previously reported to the Illinois Department of Labor were now to be reported to the Industrial Commission.

Conflict and compromise
Writing the plan turned out to be almost as difficult as its implementation. The initial draft was written by the National Loss Control Corporation which brought a charge from organized labor that the plan favored business since it was written by a firm specializing in industrial relations. Robert Gibson, secretary-treasurer of the Illinois State Federation of Labor (AFL-CIO), said that from labor's viewpoint the plan was conceived in secrecy and signed by Gov. Dan Walker without any public hearings. Gibson said labor refused to attend the signing ceremony in Illinois because they didn't have a voice in formulating the plan. The predicament for the state AFL-CIO was that they wanted to participate in forming the Illinois plan if one was going to be passed, but at the same time had to take their cues from the national AFL-CIO which didn't want individual states to have plans. " We waffled for a while, " Gibson said.

But business wasn't entirely happy with the state plan either. Leonard Day of the Illinois State Chamber of Commerce noted that although various segments of business, industry and labor were included on the governor's committee which was writing the Illinois OSHA plan, employers seemed to be standing alone. Day said the final plan was a compromise among the various interests.

The Illinois OSHA plan was finally submitted to the regional OSHA office on November 30, 1972. Final approval came a year later on November 1, 1973when Illinois became the twentieth state to have a state OSHA plan approved by the federal OSHA. The plan was to become effective immediately for a three-year test period. If at the end of the three-year period OSHA was satisfied that Illinois' enforcement of the OSHA standards was as effective as the federal government's, then OSHA would withdraw and leave enforcement of OSHA standards almost entirely up to the state. Finally, in November 1973 the Industrial Commission rescinded all of its previous state occupational health and safety standards and substituted OSHA standards.

Under the plan the Illinois Department of Labor had the lion's share of the responsibility for enforcement. The department was to train and employ the inspectors who would conduct the inspections and issue citations. The Industrial Commission was to review the contested citations, assign penalties, and determine abatement periods. The Commission also had the authority to promulgate new standards. The federal OSHA inspectors could still make inspections, and theoretically an employer could be visited on the same day by a state inspector and a federal inspector. But most inspections were conducted jointly by federal state teams, and once the trial period was over, these joint inspections would cease. The funding of the plan was to be divided evenly between the state and the federal government. Initially, 120 inspectors were budgeted by the Illinois Department of Labor with plans of assigning 137 safety compliance officers and 20 industrial hygienists. Most inspectors had been with the department prior to OSHA, and while this point was initially accepted by the federal OSHA, the state plan was not fully accepted once it had been implemented. Federal OSHA was critical of the fact that most state inspectors were not well trained, many of them having only high school education's. Federal OSHA seemed pleased by the quantity of inspections but was critical of the quality. It conducted two one-on-one audits of the state's program, one in

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May 1974 and the other in November1974. The federal report noted many violations state inspectors had missed.

Day of the Chamber of Commercial so notes employers were unhappy over the state plan because " regulations by the state turned out to be more strict than the federal regulations. " Indeed, the Industrial Commission elected to include state and local government employees where the federal OS HA act had not included them. The state did exclude coal mining and farming, however.

Ironically it was lack of funding and not the critical reviews by the federal OSHA reports that led to the demise of the Illinois OSHA program, according to Melvin L. Rosen bloom, former chairman of the Industrial Commission. Rosen bloom said that Illinois wanted to fit its program more along the lines of occupational health regulation rather than merely establishing health regulations as the federal OSHA has done. Rosen bloom explained that the state was in the process of designing a data gathering plan that would involve the University of Illinois Medical School and the Illinois Institute for Environmental Quality as research assistants.

No funds
However, the General Assembly turned down in 1973 a budget request to fund this elaborate data system. " We would have needed five or ten times more funds than we were appropriated to fund our plan as we had envisioned it, " Rosen bloom said.

The federal reports were particularly critical of the state's hiring practices of its inspectors and found Illinois "...failed to hire and promote in accordance with the procedures mandated by the [state] Plan. " The federal report also seemed critical of the fact that the state plan received considerable negative publicity and reaction. It noted upon release of the First Semi-Annual Report on the Illinois plan, that Chicago newspapers " presented articles summarizing federal findings with a conspicuous general emphasis on negative aspects, " and the withdrawal of the state from the OSHA program was announced ". . . in the preemptory and vociferous fashion to which observers of he Illinois program had become accustomed. " It should be pointed out, however, that the federal report also noted the state had made many improvements in its inspection program since the first federal report was conducted.

Rosen bloom acknowledged that the Illinois OSHA program had some serious deficiencies. He explained that it was difficult to attract high caliber persons for inspector positions when pay scales were only $8,000 to $9,000 a year to start, with some inspectors only making a maximum $12,000 yearly.

He added that he felt the federal OSHA and the Illinois General Assembly would have prevented the state OSHA program from developing new health standards. " Congress and OSHA were sensitive about complaints of varying standards from state to state, " Rosen bloom said. Rosen bloom is likewise critical of the federal OSHA approach of concentrating on health regulations rather than occupational health research in promulgating standards. " They seem to have done everything wrong, " he said. " We thought they were wrong in the first place. Inspections should have been more selective. They started out on an adversary basis. "

And so on March 21, 1975, Gov. Daniel Walker notified the federal secretary of labor of Illinois' intention to withdraw from the OSHA program effective June 30 1975. Although it was agreed that Illinois could operate a safety and health program covering the public sector after that date, the General Assembly did not appropriate the funds and .the program was never implemented. Rosen bloom said the state decided it just didn't want to run a duplicate federal program and since the legislature would not fund the state's proposed data collection and research program, Illinois opted out of the program. Illinois was not alone in dropping out of the program. Many other states also dropped out after finding that federal OSHA was not willing to be as flexible in its supervision of state OSHA plans as many states had anticipated.

When the state pulled out of the OSHA program, federal OSHA was forced to take over the entire enforcement procedure. Today the federal OSHA has some 98 compliance officers assigned to Illinois. The ratio of safety officers to health inspectors is three to one. Plans are being made to add to this force in order to reach a ratio of one to one for health and safety inspectors. But criticism from both labor and business still persists. " OSHA should do more along the consulting line, " said Day, " to help an employer make a work site safer. As it is now, OSHA doesn't say how to correct things when they issue a citation. An employer can get his fair day in court through the appeal process, but it takes time and he needs to know how to correct violations, " he added.

Labor and management
On the other hand, AFL-CIO Secretary-Treasurer Gibson said the health and safety program in Illinois has deteriorated after the state turned it back to the federal OSHA. " They can't maintain proper frequency of inspections and be as efficient, " he said. Gibson added that from labor's viewpoint it doesn't make much difference who makes the inspections if the program isn't fully funded —which he contends is the case now. Gibson said labor believes the basic OSHA program and standards are good, but not enough money is being appropriated at both the state and federal level to adequately run the program.

Day notes that in its five year existence he has seen OSHA come a long way. "There are still Some inspectors who go around with tape measures, but most inspectors are learning the rule of reasonableness," he said. ž

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