Sunday, April 17, 2016

Safety is Important, what is Effective?

A recent letter in the Jacksonville Times Union caught my attention. The headline read Florida Workers' Have Little Safety Protection. That is a little alarming.

The author noted that we recently marked the "105th anniversary of the infamous Triangle Shirt Waist Factory fire in New York City." That was a tragic event. Despite being so long ago, that fire was the city's worst loss of life until the September 11 attack almost 100 years later. It was a seminal moment in the history of that city and a large impetus to the passage of workers' compensation laws across the nation. 

The author stresses that there were safety issues that led to the 148 deaths that day in New York; undeniably. There was a garment factory in a high-rise building. This arrangement was not uncommon in that era, with manufacturing enterprises sharing buildings with service providers and even residences. The owners of this factory had concerns that led them to lock doors and restrict access. When the fire began, there were doors that impeded escape, minimal fire protection (at best) and a single fire escape (which failed). It was truly a tragic event. 

One outcome of the event was a push for workers' compensation laws. Another was a push for workplace safety. There was a fair amount of involvement by various unions and (later to become) household names in that process. One of the American heroes involved was Francis Perkins. She was the first female United States Cabinet member. She was a pioneer of workplace safety laws and workers' rights. Much changed in America after the Triangle fire. 

The recent letter author laments that "Florida was one of the last states to enact a workers’ compensation law in 1935." This is accurate. Florida was about 25 years behind the states that adopted the concept initially. The "southern" states were the slowest to adopt these statutory constructs. Mississippi was the last state, adopting its workers' compensation law in 1948. 

One of the elements of the Florida workers' compensation law was safety rules. This has been referred to as "an essential element of that law." The author notes that the "the safety rules that were enacted and the Division of Safety to enforce them were paid for by employers, not taxpayers." The process of paying for the Division of Workers' Compensation and the Office of Judges of Compensation Claims remains the same today, no tax dollars are used in running these agencies; that is a source of some pride. 

The author points out that "the state Legislature repealed 'safety' in Florida effective July 1, 2000." He concedes that between Florida's creation of the workers' compensation act in 1935, and the "repeal of safety" in 2000, the Federal Government entered the field of safety. It was 1970 when the Occupational Safety and Health Act created the Occupational Safety and Health Administration (OSHA). So, about thirty-five years after workers' compensation came to Florida, OSHA came to Florida. About thirty years after OSHA came to Florida, the Legislature repealed the redundant state safety provisions. 

As an aside, the safety provisions in state law were not in chapter 440 (the "workers' compensation law") but in Chapter 442, titled "Occupational Safety and Health." This entire chapter was repealed July 1, 2000 by ch. 99-240. Some of the provisions of Chapter 442 had by then been around many years. 

So, some would argue that the Florida Occupational Health provisions were redundant of federal law, and that it made sense to remove one layer of bureaucracy in 2000. The recent letter author disagrees, however. He argues that since 2000 "a great majority of (Florida employees), had no governmental safety oversight." He argues that OSHA regulations do not apply to business with less than 10 employees, and do not apply to government employees. Thus, the contention is that OSHA does too little to protect the safety of employees. 

The fact, however, is that OSHA applies to all businesses. There is a specific exemption for state government. According to OSHA, there are some reporting and inspection exemptions for employers with less than 10 employees. But, it appears that OSHA safety regulations exist even for employers with less than 10 employees. This may suggest that the "great majority" of Floridians do enjoy government safety oversight. 

If the constraints of OSHA safety is not relevant, but we were to instead consider OSHA "reporting," are a majority covered using that definition? Who is "reporting" to OSHA, that is how many employees are working for companies that are above the 10 employee reporting parameter? According to the Bureau of Labor Statistics, Florida had 9,792,900 persons employed in February 2016. Of these, only 1,085,800 (11.1%) were employed by government. So arguably about 88% of Floridians are subject to OSHA safety protections. 

According to Florida's Small Business Development Council, there are over two million small businesses in Florida, and over 400,000 of these have employees. They define "small" as less than 50 employees, and say that 3,000,167 Florida workers work for such "small businesses." Remembering that there is a great difference between the 50 employee parameter used by the Council and the 10 employee threshold for OSHA reporting, the combination of government and "small business" employees (>50) still totals only 4,085,967, or roughly 41% of Florida employees. So, at least 59% of Florida employees are subject to OSHA reporting and about 88% are subject to OSHA safety requirements. It would appear that the "great majority," 59% to 88%, of Floridians are subject to OSHA. 

There is also a voiced concern that OSHA provides too little protection. The author says "the large private employers, the ones covered by OSHA, can expect to be inspected once every 230 years, according to OSHA statistics published by the U.S. Department of Labor." So despite being covered, the author's contention is that "Florida employees are no safer on their jobs today than were the employees of the Triangle Company on March 25, 1911." And so, the natural expectation would be that ever-increasing numbers would suffer accidents and injuries. Without the protections of the State Occupational Safety law and with OSHA so overworked, the result would obviously be less safety and greater frequency of accident and injury. 

But, according to the Bureau of Labor Statistics, workplace injuries are decreasing. In fact, the evidence supports that "with the exception of 2012" there have been annual decreases in frequency of injury "for the last 11 years." As reported by Risk and Insurance, the "reduction in the rate was significant." Some might question why the frequency of injury is decreasing, and how that can be reconciled with the author's argument that OSHA oversight is nil, and with the deleterious effects of the repeal of Chapter 442? 

Some prognosticate that there is a disaster coming. They say that Florida will suffer a Triangle Fire disaster and that this hypothetical event might be enough to spur the re-adoption of state Occupational Health laws to supplement or augment the OSHA regulations. Others disagree and believe that the frequency of injury will remain stable or may even continue to decline despite the absence of these regulations. 

Time will tell where the actual path lies. 

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