Who is protected? OSHA exemptions to coverage and record keeping

| August 22, 2013

I was recently catching up with some old episodes of The West Wing. One episode addressed OSHA exemptions by featuring an amusing sideplot where Josh Lyman, the Deputy Chief of Staff to this fictional White house, is being hounded by his assistant about the importance of OSHA funding when it comes to protecting workers from repetitive stress injuries:

josh and donna, the west wing

Josh Lyman and Donna Moss, on The West Wing, had a productive if sometimes combative employer/employee relationship.

DONNA: Do you know how many people acquire Carpal Tunnel Syndrome?

JOSH: It shouldn’t surprise you to learn that I do not.

DONNA: 600,000 Americans a year. Do you have any idea how painful it is?

JOSH: Donna, in the scheme of things, who really cares?

Donna grabs Josh’s ear and pulls it back, hard.

DONNA: Do you have any idea how painful it is?

JOSH: Yes, yes, yes, yes.

Donna lets him go.

DONNA: Pain in the forearm, no grip, you lose the ability to pinch.

JOSH: People who lose the ability to pinch, I got to tell you, I don’t know from where they summon the will to go on.

DONNA: You guys are on the wrong side of this.

JOSH: Aren’t you one of ‘you guys’?

DONNA: Not on this.

During the episode, Donna and a few of the assistants threaten to type slowly in order to avoid carpal tunnel syndrome, as a way to bring their bosses’ attention to the issue. It caught me by surprise, as I happen to know from my OSHA research that the White House is a federal workplace and as such, OSHA exemptions apply. I underestimated the show writers, of course, and later in the episode that very valid point is made by Leo McGarry, the Chief of Staff. As the agency itself states:

The OSH Act covers most private sector employers and their workers, in addition to some public sector employers and workers in the 50 states and certain territories and jurisdictions under federal authority. OSHA covers most private sector employers and their workers in all 50 states, the District of Columbia, and other U.S. jurisdictions either directly through Federal OSHA or through an OSHA-approved state program. Workers at state and local government agencies are not covered by Federal OSHA, but have OSH Act protections if they work in those states that have an OSHA-approved state program.

Donna Moss may have been a little ahead of her time, but change is coming to the White House. Starting next year, federal agencies will have to file the same injury and illness reports that private employers are required to submit, according to an Occupational Safety and Health Administration final rule published in the Federal Register on August 5. Those agencies will report to the Bureau of Labor Statistics (BLS), which in turn will make the information available to OSHA, although data about individual worksites will still be confidential, as per BLS policy.

Reporting is projected to start in May of 2014, when 2013 data will be due. This development is being welcomed by observers and federal employees. In the news release explaining the final rule, OSHA’s Assistant Secretary of Labor Dr. David Michaels said, “The data will help us streamline and improve programs to reduce occupational hazards and prevent injuries, illnesses and deaths within the federal workforce.”

Coverage and record-keeping exemptions

This development in OSHA’s scope made me wonder about other groups of workers in this country who are just outside of the agency’s protection in various ways. Self-employed workers obviously aren’t covered. OSHA also doesn’t cover workers whose hazards are regulated by other federal agencies (for example, the Mine Safety and Health Administration, the Department of Energy, Federal Aviation Administration, or Coast Guard), although those workers are at least adequately protected by their own oversight or agency.

Most controversially, farmers and their immediate family members are not protected by OSHA. Although commercial farm operations are covered, many American farms are still family-run and thus unregulated. This becomes a particular concern when it comes to the hazards of grain storage, which we’ve talked about on this blog before. Grain storage accidents and deaths have raised the question among experts as to whether the agency should start regulating family farms.

Even for workplaces covered by the Occupational Safety and Health Act, there are variances in how much oversight the agency requires. For instance, some businesses aren’t required to provide annual injury and illness reports to the BLS, including small businesses with 10 or fewer total employees and a whole host of casual and service-oriented industries like beauty parlors and funeral houses (although they always have to report a fatality or hospitalization of more than three employees).
Obviously, not requiring record keeping from these businesses doesn’t mean that OSHA isn’t committed to making sure employers keep their workers safe via standard engineering controls and preventive measures, as well as assuring those workers of their rights. They’re still required to do that by the General Duty Clause, which requires every employer to create a safe workplace for its employees by addressing what can reasonably go wrong. But the agency does seem to make the calculation that low-risk workplaces don’t need an undue reporting burden, which we have to assume saves a lot of paperwork at both ends.

Ultimately, the federal recordkeeping requirement is a small but crucial change in the way OSHA monitors our workplaces. The federal workforce is a considerably sizable population; data about their injuries and illnesses will create a more complete picture of the health of our workforce and will allow OSHA officials to monitor and analyze the causes of any severe or recurring incidents. And those tireless White House employees, both fictional and real, can feel protected by the very government they serve.

Category: News, News / New Products, OSHA

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