It's Time to Reevaluate OSHA

 The federal Occupational Safety and Health Administration (OSHA) has not kept pace with the evolution of workplace health and safety. The OSH Act was enacted in 1970, and, unfortunately, it has become progressively less relevant, even when the importance of health and safety has increasingly been recognized.

As President Trump and his Administration seek to make the federal government more efficient and responsive to its stakeholders, OSHA is not immune to this evaluation; it would, in fact, benefit from it. It is time to think about doing OSHA differently and to conduct a program evaluation of what is the return of the budgetary investment in this agency and to refocus resources where they can have the most potential consequence.

Throughout my three-decade career in workplace health and safety, which includes serving as the Chair of the U.S. Occupational Safety and Health Review Commission (OSHRC), as Vice President of Worldwide Workplace Safety at one of the world’s largest companies, and serving with other safety leaders in various organizations during various parts of my career, such as the National Safety Council, the American Society of Safety Professionals, and the Conference Board’s Chief EHS Officer’s Council, I have navigated (and adjudicated while at OSHRC) regulatory compliance and championed proactive safety. I offer the following insights on the state of workplace safety. The views stated herein are my own.

While the traditional approach to safety often focuses on preventing or minimizing human errors or mistakes, the perspective is shifting as organizations recognize that, collectively, we have plateaued in our efforts to reduce Serious Incidents and Illnesses (SIF)—a incident metric that the National Safety Council broadly defines as “injuries, illnesses, process safety events, environmental hazards/exposures, fire, and property damage” and includes near misses or potential SIFs (pSIFs). See NSC’s Prevention Model.

The data maintained by the U.S. Bureau of Labor Statistics (BLS) shows that there is still much work to do in eliminating life-changing workplace incidents. In December 2024, BLS reported that there were 5,283 fatal work injuries recorded in the United States in 2023 (see Chart 1). The fatal work injury rate was 3.5 fatalities per 100,000 full-time equivalent (FTE) workers (see Chart 2). As reported by BLS in its December press release, while the U.S. saw a year-over-year decrease in fatal work injuries in 2023, significant process has not been achieved over the span of the past decade:

2022 BLS Fatal Injury Data

As a result, the focus of workplace safety cannot be just about meeting compliance standards (and spending seven years on average trying to promulgate just one standard to have it challenged in the courts) or seeking to minimize human errors or mistakes. A targeted approach must build safety capacity to address the hazards and conditions in operations and creating barriers and controls against them.

Many organizations already recognize this. In fact, through my engagement with leading safety associations, the conversation among safety leaders is frequently about how to look at safety differently. During these conversations, there is a little discussion of Total Recordable Injury Rate (TRIR) as most recognize that this is not the best indicator of an enterprise’s safety performance. For decades, workplace safety focused primarily on regulatory compliance and tracking all “recordable” workplace incidents and injuries pursuant to the recordkeeping regulation, 29 CFR Part 1904. Under the recordkeeping regulation, employers must report injury and illness data to OSHA. However, even the U.S. Government Accounting Office has recognized the problems inherent in the current data collection and validation process. Recognizing the weaknesses of the current traditional lagging metric of TRIR, more companies are turning to voluntary consensus standards, such as ASTM International E2920-19, Standard Guide for Recording Occupational Injuries and Illnesses, which is intended to define work-related injuries and illnesses in a way that can be easily understood and measured across countries. These recorded injuries and illnesses can be used to evaluate, compare, and continually improve management systems and programs related to worker health and safety.

Today, instead of a focus on TRIR, most employers favor leading indicators. For instance, the ANSI/ASSP Z16.1 standard (I currently serve on this standard’s committee) provides the means to comprehensively measure an organization’s safety and health management system, with special emphasis on understanding and managing risk. The standard incorporates a set of leading metrics (inputs and outputs), that can influence and predict outcomes and results (lagging and business impact metrics). A balanced approach to measurement is provided for improving risk management and management system elements and attributes that support overall risk reduction. A balanced approach uses metrics in a systematic and multi-dimensional way to validate and influence organizational strategic objectives. The standard also reviews techniques for normalizing the data, promotes tying metrics to business impact and value, and encourages the engagement of key stakeholders (including management and workers) in the selection of the appropriate metrics for their organization.

As companies seek and discuss a meaningful understanding of data and metrics that have value for prevention purposes, OSHA should have a more impactful seat at the table in partnering on their development and application across a broad set of employers and industries.

It is unfortunate that we did not see the fruits of Assistant Secretary Doug Parker’s work on behalf of OSHA, before the end of his tenure, on the efforts to modernize the agency’s Voluntary Protection Program. I testified during OSHA’s listening session on VPP in 2023 and submitted comments. I encourage OSHA during the Trump Administration to continue this work, and I commend Doug Parker for his willingness to engage in a discussion on the benefits and possible expansion of VPP, which traditionally is an unpopular program in the eyes of Democrats.

That is not to say that OSHA should not prioritize enforcement. For those employers that do not recognize that a safe workplace is sound business, clearly, enforcement of the OSH Act and its standards is required. Although, I would argue that enforcement should be better targeted to the industries and hazards that present the greatest risk of SIFs (and not carried out merely because of a political target, which has too often been the case). For many companies, compliance with the OSH Act is the floor, and they are seeking to achieve even greater safety performance through continual improvement on their journey to safety excellence—where a strong safety management system is developed that incorporates the key elements of hazard identification and assessment; worker participation and engagement; and management leadership and accountability.

I have also seen firsthand what can be accomplished when we work together and leverage the expertise of various stakeholders. One of the things I am most proud of during my career is my role in the formation in 2021 of the National Safety Council’s MSD Solutions Lab, and its various components, representing a partnership that began between NSC and Amazon to seek solutions for work-related musculoskeletal disorders (MSDs) across all industries and organizations.

The initiative includes the MSD Pledge, which created a community of organizations that work together with the shared goal of reducing MSDs. This initiative aims to reach this goal through three focus areas:

• Risk reduction, including understanding and analyzing the causes of MSD injuries and investing in solutions and practices to reduce risk.

• Organizational culture that values and promotes safety, including understanding that all workers, at every level of an organization, have a role to play in the safety and health of the workplace.

• Innovation and collaboration, including leveraging best practices and sharing learnings and innovations to improve safety practices across the community.

Upon release of its findings in its second MSD Pledge Report, on December 23, 2024, NSC stated that, “This year’s report reflects the dedication of the MSD Pledge community to building safer workplaces and protecting workers’ health....With the insights from the MSD Solutions Index, we see organizations are making significant strides and identifying critical areas for improvement, proving that the MSD Pledge can drive real change in the safety and wellbeing of workers worldwide.”

Another great example of what strategic partnerships can achieve is the Electrical Transmission and Distribution (ET&D) Partnership, which goes back over twenty years, to 2004. The partnership was born from a common goal of improving worker safety in the high-voltage electric line construction, transmission, and distribution industry. Its history demonstrates that OSHA working together with stakeholders can achieve results that further workplace health and safety on a broad industry scale.

Before its formation, in 2003, the electrical construction industry employed around 22,000 workers. That year, 15 workers lost their lives, and nearly 6 out of every 100 suffered injuries on the job. See David Michaels, PhD, MPH, Worker Safety Needs to Be Central to Your Company’s Operations, Harvard Business Review (Sept. 13, 2023) (“Dr. Michaels’ Article”), wherein he discusses the ET&D partnership. Acknowledging the need for action, the CEOs of five electrical construction companies invited OSHA and the IBEW, the labor union representing workers at some of the participating firms, to collaborate in the effort. Collaboration played a vital role in enabling the companies to show their commitment to ensuring workforce safety. The companies also sought the engagement of two major trade associations: the National Electrical Contractors Association, which represents both large and small contractors, and the Edison Electric Institute, which represents utility companies that contract with construction firms for grid development and maintenance. Legendary (and good friend) employer-side OSHA attorney, Dennis Morikawa, was also instrumental in bringing the stakeholders together. [Look for my Safe Tea podcast episode soon with Dennis where we discuss the ET&D partnership and other things OSHA.]

The partnership prioritizes data analysis, best practices, and training. Initially, firm-specific injury data were collected, anonymized, and analyzed to drive continuous improvement. Experts reviewed all injuries from the past five years, identifying causal factors that could be mitigated or eliminated through improved practices. These included implementing new pre-job briefing requirements and mandating the use of insulated gloves and sleeves. To reinforce these best practices, training programs were developed. Partner representatives convened to assess accidents and near-misses, aiming to effectively prevent their recurrence. See Dr. Michaels’ Article.

Today, the ET&D strategic partnership has grown from its original five partners to 12. See OSHA’s ET&D Partnership White Paper (April 29, 2024). OSHA estimates that the industry’s average fatality rate dropped from more than 40 deaths per 100,00 workers per year before the partnership to less than four per year from 2018 to 2022. See Dr. Michaels’ Article. Serious injury rates have also fallen and remain a fraction of what they were before the program began. Id.

The success of these strategic partnerships that I’ve highlighted, along with their collaboration, demonstrates that working together across an industry or industries provides many benefits. As more firms share their expertise, best practices can be identified and communicated. Increased data strengthens statistical activities, making them more robust and enabling firms to benchmark their performance against competitors. A broader set of incident investigations enhance the design of training programs, worker engagement, and communication. Strategic partnerships can offer numerous training classes and resources to workers.

There are other examples of how stakeholders working together have furthered health and safety, and instead of arguing that OSHA’s cooperative programs detract from compliance and enforcement, we should recognize that without greater partnership and collaboration with the private sector, OSHA will not be a leading voice in furthering workplace health and safety. If OSHA is not a leader in the conversation, others committed to continual improvement and furthering safety excellence will be having it without the agency, making OSHA progressively irrelevant.

To continually improve and flourish, stakeholders and safety leaders need to explore new ways of operating and approaching safety with curiosity and critical thinking. Undoubtedly, technology has dramatically changed the way businesses operate, and its impact on workplace safety is no exception. With operational environments becoming more complex, technology plays a critical role in enhancing workplace safety and reducing the risks associated with human error. Proactive safety measures increasingly rely on advanced technologies, like IoT and AI, to address risks before they result in accidents. Technological advancements have led to the development of sophisticated hazard detection and monitoring systems, which can quickly identify potential risks in the workplace, and solutions that reduce the need to perform more dangerous tasks. We can harness these to drive positive safety results. Within this new territory, I am excited about the possibilities. In addition to developing new and innovative ways to leverage the expertise of stakeholders, OSHA should participate in a conversation with technology solutions providers and organizations looking for innovative safety solutions.

My assessment of OSHA would not be complete without offering some comments on rulemaking. Rulemaking should be evaluated, among other reasons, in consideration of whether current regulations are holding back innovation that would make equipment and workplaces safer (e.g., technology has changed dramatically since the LOTO and PIT standards were promulgated and/or updated). Particularly, in the post Loper Bright world, the agency must understand the challenges it faces with its status quo approach. In a post-Loper Bright world (where the Supreme Court decision in Loper Bright Enterprises v. Raimondo overturned the Chevron deference doctrine, which was previously used to grant significant deference to federal agency interpretations of law), OSHA is likely to face significantly more legal challenges to its regulations, such as the one already filed challenging OSHA’s walkaround rule, as courts are no longer required to defer to the agency's interpretation of statutes, meaning they can independently review and potentially overturn OSHA rules that they deem inconsistent with the law.

I will say, however, that I think OSHA should promulgate a heat illness and injury prevention standard: (1) because there is universal agreement that employers should protect employees from heat-related injuries and illnesses in both indoor and outdoor work environments where there is extreme heat; and (2) as the majority explained in OSHRC’s decision in A.H. Sturgill  Roofing Inc. (an opinion, by the way, that has been widely misunderstood, or probably more accurately, purposely misconstrued), using the General Duty Clause in Section 5(a) of the Act is challenging when trying to prove a citation alleging a violation of exposing workers to the hazard of excessive heat. While I support a heat standard, OSHA should, as noted by the U.S. Chamber in its comments to OSHA, promulgate a new one that has a performance-based orientation with employers expected to incorporate widely accepted elements for an effective heat illness and prevention program—training, acclimatization/enhanced supervision for new or returning employees, and the provision of water, rest, and shade—instead of applying a one-size-fits-all approach.

I will stress again. For those employers that do not recognize that a safe workplace is sound business, enforcement of the OSH Act and its standards is required. Enforcement should be driven by data that shows where enforcement will make the most impact and carried out especially on employers who do not have an organizational culture that values safety. Let them get the message that these violators will not be tolerated. But let’s also use the resources and impact of a large community that does value safety and has a willingness to help others continually improve their management systems and programs related to worker health and safety.

There is before OSHA an needed opportunity to do something great with an agency that is tasked with the incredibly important mission of worker health and safety and to make it more relevant to today’s world. The agency itself, along with its dedicated professionals, and the Nation’s employers, unions, and workers should all want OSHA to be more relevant to continual improvement and achieving safety excellence in American workplaces.