Workplace Safety and Health: OSHA Can Better Respond to State-Run Programs Facing Challenges
Published: 2013-04-16T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Occupational Safety and Health Administration (OSHA) is generally responsible for setting and enforcing occupational safety and health standards in the nation's workplaces. OSHA carries out enforcement directly in 34 states and territories, while the remaining 22 have chosen to administer their own enforcement programs (referred to as state-run programs) under plans approved by OSHA. GAO was asked to review issues related to state-run programs. This report examines (1) what challenges states face in administering their safety and health programs, and (2) how OSHA responds to state-run programs with performance issues. GAO reviewed relevant federal laws, regulations and OSHA policies; conducted a survey of 22 state-run programs; and interviewed officials in OSHA's national office, all 10 OSHA regions, and from a nongeneralizable sample of 5 state-run programs; and interviewed labor and business associations and safety and health experts.
section_title: What GAO Recommends
paragraphs: Congress should consider giving OSHA a mechanism to expedite assistance to states experiencing challenges. In addition, OSHA should take a number of actions, including facilitating access to training; establishing time frames for resuming enforcement if states do not address challenges in a timely manner; and documenting lessons from its past experiences in resuming federal enforcement of state-run programs. In response, OSHA agreed with the recommendations and said it will explore ways to implement them.

section_title: Letter
paragraphs: States are facing severe budget constraints that have jeopardized their  ability to effectively administer state-run occupational safety and health  programs. In addition, from January 2008 through June 2009, Nevada  experienced 25 workplace fatalities, raising concerns about the way  Nevada and other states with their own state-run safety and health  programs administer them. The Department of Labor’s Occupational  Safety and Health Administration (OSHA) is generally responsible for  setting and enforcing employer compliance with occupational safety and  health standards in the nation’s workplaces under the Occupational  Safety and Health Act of 1970 (OSH Act). The OSH Act also permits  states to assume responsibility for setting and enforcing their own safety  and health standards by submitting a state plan to OSHA for approval.  Currently, 22 states have chosen to administer their own OSHA-approved  occupational safety and health programs that cover workers in the private  sector as well as workers in the state and local public sector. The other  states rely on OSHA to enforce compliance with federal safety and health  standards, which apply to employees in the private sector, but not those  in the state and local public sectors.
Under the OSH Act, OSHA is required to monitor state-run programs and  withdraw approval of a state’s program if it finds that the state has failed  to comply substantially with any provision of its state plan, including those  required by the federal statute and regulations. A state may voluntarily  withdraw its program for any reason, such as lack of political support.  However, a state’s inability to effectively operate its program can create  gaps in protection for workers in the state and place a burden on OSHA if  federal intervention is required. In response to your request that we  review worker protection in states that face challenges administering their  own safety and health programs, this report examines (1) challenges  states face in administering their safety and health programs, and (2) how  OSHA responds to state-run programs with performance issues.
To address our objectives, we reviewed applicable federal laws and  regulations and OSHA policies related to the administration of state-run  programs. We interviewed officials from OSHA’s national office and all 10  OSHA regional offices about how the agency monitors selected aspects  of state-run programs and responds to states’ performance issues and  how OSHA prepares for potential state-run program withdrawals. We  reviewed the 22 state-run programs that cover both private sector and  state and local public sector workers. To better understand the challenges  faced by states, we interviewed officials from a nongeneralizable sample  of five states selected to illustrate a range of program performance:  California, Hawaii, Nevada, South Carolina, and Washington. We  interviewed state officials in person in California, Hawaii, Nevada, and  Washington, and by phone in South Carolina. To gather the perspectives  of OSHA regional officials, we visited two regional offices and two area  offices—Region 9 in San Francisco and the region’s area offices in  Honolulu and in Las Vegas, and Region 10 in Seattle. We visited Region  9 because it oversees three of the states we selected for review— California, Hawaii, and Nevada—and Region 10 because it oversees one  of the states we selected—Washington. We also interviewed regional  administrators and other managers in the remaining eight regional offices  by phone. In addition, we discussed state-run programs with  representatives of labor and business organizations; the Occupational  Safety and Health State Plan Association, which represents the interests  of states with state-run programs; and academic experts in safety and  health.
To gather additional information about the states with state-run programs  that cover both private sector and state and local public sector workers,  we surveyed state officials in the 22 states with these programs and  obtained responses from all of them. We requested information about  their sources of state funding, state occupational safety and health  standards, the experience levels of their inspectors, and the perceived  likelihood of the withdrawal of their state plan in the near future. See  appendix I for more information on our survey of the state-run programs.
We conducted this performance audit from November 2011 to April 2013  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: The OSH Act was enacted to ensure safe and healthful working  conditions, in part by providing for the adoption and enforcement of  federal occupational safety and health standards and by assisting and  encouraging states to adopt programs of their own. OSHA develops and  enforces federal safety and health standards under the OSH Act. In  addition, OSHA reviews, approves, and evaluates the plans and  operations of states that have chosen to operate their own occupational  safety and health programs. According to OSHA, benefits of state-run  occupational safety and health programs include coverage of state and  local public sector workplaces, the resources provided by states to  supplement federal resources, familiarity with local working conditions  and industries, and the innovative approaches states can provide.
State-run programs vary in their scope of coverage and division of  enforcement authority between OSHA and the state. A state-run program  may define its scope of coverage according to the type of workplace or  worker, within certain limits. For example, a state may exclude private  contractors on military bases. However, all state-run programs are  required to cover state and local government (public sector) workers in  the state. Figure 1 shows the states without a state-run program, for  which OSHA provides enforcement for private sector workplaces; the  states with state-run programs that cover only the public sector, for which  OSHA provides enforcement for private sector workplaces; and the 22  states we reviewed with state-run programs that cover both private and  public sector workplaces.
The OSH Act requires that state-run programs provide for the  development and enforcement of safety and health standards that are “at  least as effective” in providing safe and healthful employment as the  federal standards. States may adopt standards that are identical to  OSHA’s, or that are different from, but determined by OSHA to be at least  as effective as, OSHA’s standards. This may include state standards that  are more stringent or that address hazards not covered by federal  standards. Seventeen of the 22 state-run programs we surveyed reported  that they had established state standards that are substantively different  from OSHA’s standards or that cover hazards for which there are no  corresponding federal standards. (See the responses to survey question  4 in app. I for information on state standards reported by state-run  programs.)
The OSH Act and OSHA regulations require state-run programs to  employ a sufficient number of qualified and adequately trained personnel  necessary for the enforcement of safety and health standards. Personnel  who enforce occupational safety and health standards include safety  officers (hereafter referred to as safety inspectors) and industrial  hygienists (hereafter referred to as health inspectors). (See app. II for  information on staffing levels for state safety and health inspectors.)  Enforcement activities include inspecting worksites, typically on a  schedule that reflects the relative risks among industries, testing  workplace conditions such as occupational noise and air quality,  documenting workplace hazards, investigating accidents and complaints,  and issuing citations and penalties for violations. OSHA’s Directorate of  Training and Education administers OSHA’s national training and  education policies and procedures. One of OSHA’s directives details the  training program for federal safety and health inspectors and requires  state-run programs to establish their own training programs for their  safety and health inspectors that are at least as effective as OSHA’s  training program. OSHA officials told us that all states, including those  that have developed their own training programs, may also avail  themselves of training courses offered by the OSHA Training Institute  (OTI). OTI, the agency’s national training center near Chicago, conducts  training courses for both federal and state safety and health inspectors.  Officials from several states told us that their state-run programs train  their inspectors through a combination of courses taught in-house and by  OSHA at OTI. In addition, OTI’s Education Centers—a network of non- profit organizations throughout the mainland United States and in Puerto  Rico—deliver occupational safety and health training to state and local  public and private sector workers, supervisors, and employers. These  Education Centers rely on tuition, rather than financial assistance from  OSHA, to fund their training, according to an OTI official.
The OSH Act also requires each state-run program to provide adequate  funds for the administration and enforcement of the state’s occupational  safety and health program. (See states’ responses to survey question 1  in app. I for information on sources of state funds.) The size and cost of  state-run programs vary. When a state initially submits its plan to OSHA  for approval, OSHA reviews the state’s proposed budget to ensure it is  reasonable and complete. The budget forms the baseline funding level for  that state, according to OSHA officials. Subsequently, each state-run  program applies annually to OSHA for federal grant funds of up to 50  percent of this baseline amount, which is subject to the availability of  appropriated funds. The state must match the federal grant funds  received.
subsections: section_title: Approval of State-Run Programs
paragraphs: OSHA approves the state plans and reviews the operations of state-run  safety and health programs. The first step in the process, initial approval,  begins by obtaining OSHA approval for a developmental plan whereby a  state must assure OSHA that, within 3 years, it will have in place the  necessary elements for an effective occupational safety and health  program. Once a state has completed and documented all of its  developmental steps, it is eligible for certification whereby OSHA attests  to the structural completeness of the plan. At least 1 year following  certification, during which OSHA monitors the program’s operations, the  state may become eligible for final approval. For at least the first 3 years  after initial approval, OSHA retains discretionary enforcement authority  and may enforce federal standards to the extent necessary to assure  occupational safety and health. OSHA may grant a state-run program  final approval if it determines, on the basis of actual operations, that the  program meets the criteria specified in the OSH Act and OSHA’s  regulations. By granting a state plan final approval, OSHA relinquishes  exclusive enforcement authority to the state in areas covered by the  plan. Currently, 15 of the 22 states’ programs have been granted final  approval by OSHA, while the agency has granted the remaining 7 states’  programs initial approval.
OSHA may withdraw approval of a state-run program entirely and resume  sole enforcement responsibility if the state fails to comply substantially  with the provisions of its plan. In state-run programs with initial approval  status, OSHA retains concurrent enforcement authority and may directly  enforce federal safety and health standards in those states. However,  before OSHA can reassume concurrent enforcement authority in a state- run program with final approval status, the program must be returned to  initial approval status, either by the state voluntarily giving up its final  approval status, or by OSHA revoking final approval of the state’s plan.
section_title: Monitoring of State-Run Programs
paragraphs: State-run occupational safety and health programs are monitored by  OSHA’s national office, its 10 regional offices and the regions’ area  offices. In the national office, the Directorate of Cooperative and State  Programs oversees the grants provided to state-run programs. OSHA  regional and area offices work directly with states to set inspection goals,  taking into account staffing and funding levels in each state. The regional  and area officials review state-run program performance reports and meet  with state officials to monitor their progress toward meeting their  inspection goals. OSHA’s regions also conduct reviews of each state-run  program called Federal Annual Monitoring Evaluation (FAME) reviews.  These reviews cover several areas related to state performance, such as  inspections and staffing, and can also include on-site case file reviews of  the state program. OSHA’s Directorate of Cooperative and State  Programs examines the results of the FAME reviews and other reports on  mandated state activities, according to OSHA officials.
Regional and area officials also meet quarterly with state managers to  review states’ performance. During these quarterly meetings, OSHA  regional and area officials review several types of reports that compare a  state’s progress across multiple performance measures with federal and  national data for the same period. OSHA officials told us that the national  office stays in contact with the regions through regularly scheduled  meetings and other contacts, as needed, to discuss any state program  issues. Regions generally elevate any issues to the national level, as  needed. For example, regional officials will contact the national office  about early warning signs of a challenged state program, such as  decreases in staffing levels or not meeting performance goals.
section_title: The Primary Challenges Affecting States’ Ability to Administer Their Occupational Safety and Health Programs Relate to Staffing
paragraphs: States face several challenges that affect their ability to adequately staff  their state-run occupational safety and health programs, including finding  staff to fill vacant inspector positions, retaining qualified inspectors, and  obtaining necessary training for their inspectors. The budget shortfalls  that many of the states face and their human resource policies can  contribute to these staffing challenges, which have also limited some  states’ ability to meet their inspection goals.
subsections: section_title: Difficulty Filling Vacant Inspector Positions
paragraphs: According to officials from OSHA’s national office, four regional offices,  and several state-run programs, filling vacant inspector positions is a key  challenge for states due, in part, to the shortage of job candidates with  the necessary qualifications such as a bachelor’s degree, technical  expertise, and a sufficient level of experience to independently carry out  inspections. OSHA officials in Region 4 said state-run program officials in  their region prefer to hire health inspectors with a health-related  bachelor’s degree, preferably in chemistry or biology, although such a  degree is not required. Officials with California’s state-run program said it  can be difficult to recruit candidates with expertise in fast growing  industries such as biotechnology—a specialty that would be particularly  helpful for a growing number of worksites—or candidates with fluency in  more than one language. In addition, the administrator of Hawaii’s state- run program said that, when the program needed to hire 13 inspectors in  2012, too few applicants with the desired level of experience applied;  consequently, the job announcement was modified to consider applicants  with no prior experience.
Filling vacant inspector positions is also difficult due to relatively low state  salaries and limited opportunity for salary increases. Officials from state- run programs told us that state salaries for inspectors are generally lower  compared to those offered by the private sector or federal government,  even though a 1980 OSHA report on state-run program requirements  stated that salary levels for state inspectors should be competitive  enough to attract and maintain a fully qualified inspection staff. (See  app. III for salary ranges for federal and state safety and health  inspectors.) The starting point of the salary scale for entry level staff  averaged $39,724 in 2012 for safety inspectors in all state-run  programs. OSHA officials said that, in contrast, federal inspectors are  typically hired at the midpoint of the salary scale, which ranged from  $38,511 to $47,103 in 2012. Officials from Nevada’s state-run program  said that some applicants turned down employment interviews with the  state after learning the starting salary. In addition, 6 of the 22 states we  reviewed (Arizona, Indiana, Nevada, New Mexico, Vermont, and  Wyoming) have a general salary system that does not allow staff to  progress to higher salary levels, which further contributes to their difficulty  in attracting applicants, according to OSHA officials.
Some state-run programs have attempted to address the issue of  inspector pay by revising their compensation policies to allow for higher  salaries, but they have had mixed success with their policies. For  example, officials from South Carolina’s state-run program said that they  raised their salaries to try and reduce staff turnover. In contrast, according  to OSHA officials in Region 8, Utah tried to raise inspector salaries for its  state-run program, but the state government did not approve the state  officials’ request. While OSHA officials said that they cannot directly  address the issue of low salaries for state personnel, they told us OSHA  surveyed state-run programs on their 2012 salary levels to help identify  disparities in salaries between state and federal inspectors, so that state- run programs could provide this information to their respective  legislatures when requesting salary increases.
States’ constrained budgets and human resource policies can also  contribute to challenges in recruiting qualified inspectors. OSHA officials  in Region 4 told us that constrained state budgets had previously resulted  in furloughs in two of the states with state-run programs in their region:  Kentucky and Tennessee. OSHA officials in Region 10 also told us that  state-wide pay cuts and furloughs have contributed to staffing challenges  in the state-run programs in their region: Alaska, Oregon, and  Washington. Further, in an effort to decrease costs to the state, Nevada’s  governor issued a directive in 2010 imposing a hiring freeze and reducing  or eliminating certain pay increases for state employees. In addition,  OSHA’s 2011 FAME report on Nevada’s state-run program noted that the  state legislature imposed a 2.5 percent wage reduction for all state  employees in July 2011. OSHA officials from several regions and one  state-run program said that state-wide hiring freezes have prevented  some state-run programs from filling vacant positions, including  California, Michigan, and New Mexico. Such state-wide policies are  outside the control of state-run programs because they affect personnel  across all state programs.
section_title: Difficulty Retaining Inspectors
paragraphs: Officials in 7 OSHA regions and the 4 states we contacted identified staff  turnover as a challenge to administering state-run programs. According to  agency officials, once a state provides its inspectors with training, they  become more marketable and often leave for higher paying positions in  the private sector and with federal OSHA. For example, according to  OSHA officials in Region 10, staffing levels in Alaska’s state-run program  declined by 54 percent from fiscal years 2009 to 2011 as state inspectors  left to work for oil companies.
In addition, our survey of the 22 state-run programs that cover both public  and private sector workplaces showed that, as of the end of calendar year  2011, turnover was more prevalent among safety inspectors than health  inspectors. Specifically, almost half of the states (10 of 22) we surveyed  reported that 40 percent or more of their safety inspectors had fewer than  5 years of service in their roles. In contrast, half (11 of 22) of the states  we surveyed reported that 40 percent or more of their health inspectors  had more than 10 years of service. While turnover was less prevalent  among health inspectors, state-run programs are comprised mostly of  safety inspectors: there were close to twice as many safety inspectors  (667) than health inspectors (369), based on OSHA data for fiscal year  2012. (See responses to survey question 2 in app. I for information on the  average years of service for state safety and health inspectors.)
According to OSHA and state officials, one result of high turnover is that  states regularly invest money and time training new staff on introductory  courses—the higher the turnover, the greater the resource investment. In  addition, officials from Nevada’s state-run program noted that, in the  absence of high turnover, the state program’s resources could have been  spent on other high priority needs, such as providing advanced courses  for experienced inspectors. Finally, OSHA officials from Region 9 said  that the three state-run programs in their region that face difficulty  recruiting and retaining staff (Arizona, Hawaii, and Nevada) may end up  having to return to OSHA any unspent federal funds that had been  associated with salaries for these positions.
section_title: Difficulty Obtaining Training for Inspectors
paragraphs: Some states’ inspection staff have difficulty obtaining the training needed  to conduct effective inspections and enforce compliance with safety and  health standards because of challenges OTI faces in delivering training  and because of state restrictions on travel. The challenges OTI faces  include:
Difficulty recruiting and retaining instructors. OTI uses multiple  instructors in each course, including contractor staff, to provide  training to state inspectors. Over the past 5 years, OTI contract  instructor expenditures have been reduced by about two-thirds,  according to an OTI official. The official also noted difficulty with  recruiting enough instructors with adequate experience and that there  was high turnover due to retirements and transfers to other positions  within the agency.
Difficulty accommodating demand. In fiscal years 2009 and 2010,  OSHA hired about 150 additional federal inspectors, according to an  OTI official, who also noted that the number of inspectors from state- run programs registering for OTI courses increased. As a result of the  rise in newly hired federal and state inspectors, training demand  greatly increased at a time when OTI’s resources were reduced,  according to an OTI official. As a result, some OTI courses are in high  demand and short supply and fill up quickly. For example, an OSHA  official said Nevada has had difficulty enrolling staff for OTI’s  whistleblower course given that the waiting list is a year long.  According to OTI, additional courses cannot be scheduled quickly  given that its training schedules are developed 6 to 18 months in  advance.
Limited capacity for webinars. Although OSHA inquired whether  OTI could double the frequency of its webinars from once a month to  twice per month, OTI officials told us they could not because of staff  capacity and the number of technology licenses they currently hold.  Furthermore, OTI officials said that there will be limited development  of new online courses because they have started a 5-year process of  revising their online courses.
Limits on offering certain courses in the field. OTI has a limited  number of courses it can bring to states with state-run programs.  According to OSHA, the courses increasingly use site visits and  workshops that are more difficult to set up in the field. Much of the  training OTI provides to state inspectors is hands-on training given on- site in the five laboratories contained in its building: (1) construction,  (2) hazardous materials, (3) small equipment (such as woodworking  machinery), (4) heavy equipment (such as power presses), and (5)  industrial hygiene. According to OSHA officials, few states have the  equipment and laboratories needed to support providing training off- site.
In addition to the challenges OTI faces, states also face challenges in  sending staff to OTI for training. According to regional and state officials,  some state inspectors have difficulty travelling to OTI, especially in recent  years, because states have had limited travel funds, including freezes on  out-of-state travel as part of state-wide austerity measures.
In response to the difficulties states have faced in funding travel, OTI has  taken steps to make its courses more accessible, such as:
Taking courses to the field when feasible. State-run programs may  request that OTI courses be brought to them, provided the states can  pay for OTI staff’s travel expenses. OTI officials told us that they will  take a course to a state if instructors are available, scheduling is  feasible, and hands-on components and workshops can be  transported. OTI also considers whether required training facilities and  equipment are available in the field. However, they also said they will  not take a course to a state unless a minimum number of participants  are scheduled to attend. When OTI agrees to take a course to a state,  it takes 6 to 12 months from the date of the state’s request to  schedule a course, according to OTI. In fiscal year 2012, OTI held five  courses for state inspectors on-site in four states. In fiscal year  2013, OTI plans to conduct six courses for state inspectors in six  states.
Accommodating urgent training needs. An OTI official  acknowledged that required courses for newly hired inspectors  typically have waiting lists, and in response they have accommodated  state-run programs that demonstrated an urgent training need by  allowing staff in these states to enroll before staff in other states. For  example, OTI gave priority enrollment to new state inspectors in  Hawaii following a hiring surge in 2012.
Sharing electronic training materials. OTI also periodically sends  electronic materials for mandatory courses to all state-run programs  and for other courses to states upon request, according to an OTI  official.
Surveying state training needs. Every year, OTI surveys state-run  programs to gauge their training needs based on actual and planned  numbers of safety and health staff. The survey also solicits the level of  interest in certain training topics and courses. OTI uses this  information to plan and schedule its training courses for the coming  year.
Despite OTI’s efforts to make training more accessible to state-run  programs, officials and experts told us that high staff turnover, combined  with constrained state budgets, has hurt states’ ability to ensure they  have adequately trained inspectors. Consequently, states have leveraged  the expertise of other states and OSHA regions to meet their own training  needs in a more cost-efficient manner. An OTI official told us that when  OTI could not bring a refinery course to Washington at the state’s  request, a trainer from the state-run program in California traveled to  Washington to help the state of Washington conduct the course and was  reimbursed by the Washington state program for travel. In addition,  according to the administrator of Hawaii’s state-run program, two of the  state’s newly hired health inspectors were sent to California to  accompany experienced state inspectors on inspections. Similarly, when  Hawaii’s new hires travelled to OTI for training, they received in-person  mentoring by accompanying inspectors from OSHA’s Region 5 area  offices on inspections, according to an OSHA official. Some states  located near OTI’s Education Centers have sent their inspectors to these  centers to obtain needed training. Unlike training provided by OTI,  courses completed at these centers do not count toward OSHA’s  mandatory inspector training requirements described in its training  directive; however, some states have sent inspectors to a nearby center  to save travel costs and obtain training. An OTI official noted that,  although Education Center courses place less emphasis on OSHA  standards and enforcement, they provide training on hazard recognition  and abatement. OTI Education Centers are not authorized to deliver  courses on conducting inspections.
Another resource available to states to facilitate information sharing and  obtain training in lieu of traveling to OTI is the library of state training  materials posted on OSHA’s website. The website also allows state  inspectors to access other states’ online training resources.
section_title: Staffing Challenges Affect Some States’ Ability to Meet Their Inspection Goals
paragraphs: OSHA’s annual reviews of state-run programs show that staffing  challenges have limited the capacity of some state-run programs to meet  their inspection goals. For example, in its 2011 FAME review of Arizona’s  state-run program, OSHA found that the state conducted 913  inspections—65 percent of its inspection goal of 1,400 inspections for that  year. OSHA noted that one of the reasons the state did not meet its goal  was the number of staff who were capable of performing inspections on  their own. Similarly, in its 2011 FAME review of Nevada’s state-run  program, OSHA found that the state conducted 1,254 inspections in fiscal  year 2011—59 percent of its goal of 2,132 inspections. An OSHA official  noted that the state completed 1,203 inspections in fiscal year 2012—63  percent of its goal of 1,900 inspections. Nevada’s challenges have  persisted, even though the state matched its federal OSHA grant of  $1,505,900 and provided an additional $3,450,003 and $3,886,951 in 100  percent state funding in fiscal years 2011 and 2012, respectively. State  officials attributed the state’s inability to meet its inspection goals to high  staff turnover, which necessitated diverting experienced inspectors from  conducting inspections to training and mentoring new staff. The state  officials added that having fewer experienced staff meant that they could  not conduct as many programmed (scheduled) inspections as they would  have liked because they were required to respond to higher priorities,  such as situations that involved imminent danger, fatalities, and  complaints. As a result, according to an OSHA official, the number of  programmed inspections the state completed comprised about 17 percent  of the total inspections (199 of 1,203) completed in fiscal year 2012.  According to Nevada officials, they are aware of the challenges in  completing inspections, but they told us they are limited in their ability to  address high inspector turnover. Nonetheless, OSHA urged Nevada in its  2011 FAME report to work with the state legislature to increase inspector  salaries and explore other available options that may affect staff retention.
section_title: OSHA Has Responded in Various Ways to States with Performance Issues, but It Lacks an Established Time Frame for Resuming Federal Enforcement When Needed
subsections: section_title: OSHA Has Responded in a Variety of Ways to States Having Difficulty Meeting Their Performance Goals
paragraphs: When OSHA identifies issues in state-run programs, such as when they  are having difficulty meeting their inspection goals, OSHA has responded  in a variety of ways. OSHA’s responses may include recommending  corrective action by states to address performance issues; increasing its  monitoring activities; providing extra training and technical assistance to  state program staff; communicating with the governor or other high-level  state officials about poor performance; sharing joint enforcement  responsibility with the state; and, as a last resort, withdrawing OSHA’s  approval of the program and resuming sole federal enforcement. OSHA  officials told us they prefer to work collaboratively with states using a  graduated approach—providing guidance and support before taking any  higher level actions.
OSHA must be prepared to step in quickly to resume responsibility for  enforcement if a state voluntarily withdraws its program. OSHA officials  told us that they rely on their contact with states to obtain advance notice  and status updates about any potential voluntary withdrawals of state  programs. Officials in all 10 OSHA regions told us that, as of June 2012,  no state other than Hawaii was at high risk of voluntarily withdrawing its  state program within the next 3 years. Nevertheless, in states facing  budget constraints, the state may consider budget cuts that could result in  discontinuing the state’s occupational safety and health program,  requiring OSHA to resume safety and health enforcement in the state. For  example, in 1987, when the governor of California discontinued funding  for the state’s occupational safety and health program covering private  sector employers, OSHA had to quickly resume this enforcement  responsibility. OSHA provided this enforcement coverage until 1989,  when the state resumed private sector enforcement activities. We  previously reported on both of these situations. (See responses to  survey question 3 in app. I for information on legislative or administrative  actions affecting state-run programs.)
The following examples illustrate the various methods OSHA has used to  respond to state-run programs with issues.
OSHA has been closely monitoring Nevada’s state-run program since  2009, when a number of fatalities in the construction industry in the state  raised concerns about the adequacy of the state’s safety and health  program. OSHA recommended that Nevada address issues in meeting its  state performance goals, including re-evaluating the state’s inspection  goals and modifying them, if appropriate, to reflect changes in policy and  declining industries in the state, pursuing all available options to increase  the salaries of state inspectors, and providing clear guidance for  organizing the state’s case files. In addition, OSHA asked the state to  specify in its fiscal year 2014 grant application a goal for the number of  programmed inspections it plans to conduct. An official from OSHA’s  Region 9 told us they continue to monitor the state closely. The official  said the office is also considering accompanying state staff during  inspections to get a first-hand account of how the state conducts and  documents inspections.
In the 2011 FAME report, OSHA identified persistent issues in Vermont’s  program due to the failure of program management and staff to  understand or follow OSHA’s policies, procedures, and basic inspection  and investigatory techniques. The report also cited a lack of training and  supervision provided by state officials. In response, OSHA’s Region 1  officials said they plan to enhance their monitoring of the state’s program  to ensure compliance with OSHA policies and procedures, including  reviewing randomly selected inspection files and all investigations of  whistleblower complaints. Also, the Region will review all cases involving  worker fatalities before they are closed. In addition, regional officials told  us they have been closely monitoring the state’s performance through  regular phone calls and visits, and that they also provided additional  training to state inspectors, such as training on how to document  inspections and investigate whistleblower complaints. OSHA’s regional  staff also arranged for on-site training of state inspectors by OTI because  of the state’s restrictions on out-of-state travel, according to OSHA  officials. For example, OTI conducted the safety and health management  class, which is required by the state plan for all new inspectors, in  Burlington, Vermont. In addition, OSHA Region 1 officials met with the  Vermont state labor commissioner to discuss their concerns about the  state-run program’s performance.
OSHA’s response to the challenges Hawaii has faced in running its state- run program illustrates the graduated approach OSHA can take to help a  state address its challenges, beginning with recommending corrective  action to address issues identified through its monitoring of the state-run  program, notifying the governor about the state’s continued poor  performance, and developing an agreement to share enforcement with  the state. Due to a lack of political support in Hawaii in 2009, funding and  staffing for the state’s safety and health program were cut roughly in half,  resulting in the state’s failure to complete required inspections and meet  other key performance goals. One official from OSHA’s Region 9 said he  has had frequent contact with the state and involved OSHA’s national  office when problems persisted. Because the state had not adequately  addressed its performance problems, in September 2010, OSHA elevated  the issue by sending a letter to the governor expressing concerns about  poor program performance. Over the next year and a half, OSHA  exchanged letters with two successive Hawaii governors and the  administrator of the state-run program, offering enforcement assistance if  the state voluntarily suspended its final approval status. According to  OSHA officials, the state was reluctant to give up its final approval status  because Hawaii was the first state to obtain this status and it was a  source of state pride. Hawaii state officials said that they preferred the  autonomy provided under final approval status. An OSHA official noted  that the business and labor communities were also concerned about the  state having to relinquish final approval status, in part because of  confusion over who would have jurisdiction over which workplace. An  official from the Hawaii state-run program said that the state would have  preferred obtaining OSHA’s assistance without giving up its final approval  status. Nevertheless, Hawaii notified OSHA of its decision to do so in  February 2012 in order to obtain OSHA’s assistance with enforcement. In  September 2012, after several months of negotiations, OSHA and Hawaii  finalized an agreement that specified the division of enforcement  responsibilities between OSHA and the state; stipulated that OSHA would  assist with recruiting, retaining, and training of state inspectors; and  established time frames for the state to resume sole enforcement  authority.
In September 1991, a fire at a chicken processing plant in Hamlet, North  Carolina, killed 25 workers. OSHA responded by quickly reasserting  concurrent enforcement jurisdiction with the state the following month.  Because the state’s occupational safety and health plan had not been  granted final approval, OSHA was able to reassume federal enforcement  activity without first following the procedural requirements for revoking  final approval or asking the state to voluntarily give up its final approval  status. In addition, OSHA issued a special evaluation report on North  Carolina’s state-run program in January 1992, finding significant issues  and giving the state 90 days to take corrective action. OSHA maintained  an enforcement presence until it determined that North Carolina had  taken sufficient corrective action, such as increasing funding and staffing  for its program. Because the state plan had not yet been granted final  approval status at the time of the incident, OSHA was able to expediently  intervene and conduct certain enforcement activities while the state  rebuilt its program. OSHA suspended concurrent jurisdiction in 1995,  following a series of evaluations that documented the state’s substantial  progress in improving safety and health enforcement.
In June 2011, South Carolina enacted a law to require that all  whistleblower complaints received by the state-run program from  employees in the private sector be referred to the federal Department of  Labor, eliminating any remedy under state law for such complaints.  OSHA informed the state of its responsibility under the OSH Act to  continue its whistleblower program. OSHA’s 2011 FAME report stated  that South Carolina no longer met federal requirements for approval of its  state-run program because it did not provide these workers with  whistleblower coverage. Officials from OSHA’s national office and Region  4 told us that they worked with South Carolina program staff to have the  legislature restore the state’s whistleblower program. In June 2012, South  Carolina amended the law, authorizing the state agency to investigate  private sector whistleblower complaints and pursue legal remedies for  violations in state court. Regional officials told us that they plan to closely  monitor the state’s whistleblower program as it is restored to ensure that  the state is adequately screening and responding to complaints.
section_title: OSHA Lacks a Time Frame for Resuming Federal Enforcement in States with Performance Issues
paragraphs: OSHA regional officials consult with the national office when responding  to state-run programs with performance issues, according to OSHA  officials, and the agency may withdraw approval of a state-run program  and resume federal enforcement if a state fails to comply substantially  with any provision of its state plan. However, officials told us there is no  specific point at which OSHA would consider withdrawing approval of a  state-run program, or changing a state’s status from final to initial  approval so that OSHA can resume concurrent enforcement  responsibility. Officials in OSHA’s national office and some of its regions  said there is usually a pattern of problems with a state’s performance over  time that alerts them to issues with the state-run program. OSHA’s  national office told us the regions will notify them far in advance about  poor performance that could signal consideration of withdrawing a state- run program’s approval.
While OSHA evaluates state-run programs as part of its annual reviews, it  does not hold states accountable for developing and implementing plans  to address issues within a prescribed period. In accordance with the OSH  Act, state-run programs must provide for the development and  enforcement of safety and health standards that are at least as effective  in providing safe and healthful employment as the federal standards. In  March 2011, the Department of Labor’s Office of Inspector General  reported that OSHA lacks a definition of effectiveness and measures to  evaluate the effectiveness of state-run programs. In particular, the report  stated that OSHA lacks measures to quantify the effect of state-run  programs on occupational safety and health. The report added that OSHA  needs to define when state-run programs would be deemed performance  failures, to serve as a basis for using its ultimate authority to withdraw  approval of a state program. In addition, for states with final approval  status, OSHA cannot step in and conduct enforcement activities because  it lacks the statutory authority to do so unless the state voluntarily  withdraws its plan entirely, OSHA withdraws approval of the state’s plan,  or the state is returned to initial approval status, either voluntarily or by  OSHA, consistent with the procedures in its regulations. However,  revoking final approval can be a time-consuming process that could entail  certain notice and hearing procedures if a state does not immediately  agree to give up its final approval status. Under these circumstances,  staffing challenges and other issues can affect states’ performance for  years. OSHA officials acknowledged the need for a mechanism to more  quickly intervene in state-run programs with final approval status and  performance issues.
Furthermore, while OSHA has had experience in resuming enforcement  in states with state-run programs, the agency does not compile lessons  learned from these experiences to inform its future responses. OSHA  national officials told us they would meet with the regions to discuss  lessons learned when it steps in to resume enforcement in a state, but  they do not find it useful to document these conversations, including  capturing details such as questions raised, problems faced, options  available to respond to the state’s challenges, or the type and amount of  federal resources required to resume federal enforcement in the state.
Organizations can benefit by learning from past experience and adapting  their practices based on what is learned. In OSHA’s case, although every  situation involves different circumstances in each state, knowledge of  prior OSHA responses to challenges faced by state-run programs  provides guideposts for the agency to consider as it designs strategies to  respond to future situations. More specifically, knowledge of the results,  challenges, and unintended consequences of past federal responses can  inform its deliberations as agency officials determine whether and how to  intervene in response to states facing challenges in the future.
According to government standards for internal controls, agencies should  assess and manage the risks they face. This includes having  mechanisms in place to anticipate, identify, and react to risks that can  affect the achievement of goals and objectives. Internal control standards  also state that agencies should record information related to external and  internal events and communicate it to management. However, OSHA’s  lack of documentation of its experiences in resuming enforcement in  states with challenged state-run programs and sharing these documents  across the agency leaves the agency vulnerable to gaps in institutional  knowledge, particularly with turnover of OSHA staff due to retirements,  office transfers, or other attrition. During our discussions about OSHA’s  recent response to the challenges faced by Hawaii’s state-run program,  an OSHA regional official said that capturing the details of Hawaii’s  situation and OSHA’s response would be beneficial in providing OSHA  with concrete steps to follow if faced with a situation with another state in  the future.
section_title: Resuming OSHA Enforcement Can Reduce State-Run Programs’ Scope and Strain Federal Resources
paragraphs: When resuming enforcement in a state, OSHA may not be able to devote  the same level of staff resources and conduct as many inspections as the  state would have conducted, according to OSHA officials. Also, when  OSHA takes over enforcement, state and local public sector workers may  lose the safety and health enforcement coverage that only state-run  programs can provide. Furthermore, OSHA has authority to enforce only  federal standards, not state-specific standards, which can be more  stringent than federal standards or provide protections for hazards not  covered by federal standards.
The level of resources required from OSHA to provide enforcement  depends on various factors such as the number of employers and  workers in a state, the number and type of industries, the location and  staffing of existing OSHA offices, the scope of enforcement coverage to  be provided by OSHA, and the current performance of the state-run  program, according to OSHA officials. For example, OSHA officials in  Region 4 told us that Kentucky, North Carolina, and Tennessee have  more heavy industry than South Carolina, so those states would require a  larger number of OSHA staff to provide adequate enforcement. When  California—the largest state-run program—ceased private sector  enforcement in 1987, OSHA temporarily sent about one-third of its federal  inspectors and supervisory staff to California and reassigned staff from  other activities to ensure continued coverage nationwide. More recently,  an OSHA official told us that in assisting Hawaii in rebuilding its state-run  program, the agency plans to pay travel expenses for federal inspectors  who will be assigned to work with state inspectors on a 60-day rotational  basis over a 3-year period from fiscal years 2013 through 2015. The  costs to OSHA of staff travel, renting office space, acquiring supplies, and  providing equipment are projected to be about $1.5 million over a 4-year  period from fiscal years 2012 through 2015. Some of the federal funds not  matched by Hawaii will be redirected to support OSHA assistance to the  state-run program.
To provide needed staffing for a state-run program considering  withdrawal, OSHA might be able to use federal staff already in a nearby  regional or area office, reassign staff from another region on a temporary  basis, or hire new staff. According to OSHA officials, the agency would  use a short-term response immediately after a state withdraws to respond  quickly to cases such as worker fatalities, and would then arrange for  more permanent staffing in the long term. According to its regional  officials, OSHA has experience in adjusting its resources temporarily to  respond to emergencies and changes. For example, in 2011, after the  Midwest was hit by a devastating tornado, OSHA’s Region 7 had staff in  place to oversee occupational safety and health during recovery work the  next day. However, when OSHA resumes enforcement in a state, the  reallocation of resources could affect the agency’s ability to maintain  enforcement and other activities in the states for which OSHA has  primary enforcement responsibility. When OSHA provided enforcement in  California, OSHA’s inspection volume nationwide was generally  maintained, but some other activities were disrupted, including its  monitoring of other state-run programs.
section_title: Conclusions
paragraphs: OSHA has noted that state-run occupational safety and health programs  can be beneficial to workers because of the additional types of workers  covered, the familiarity states have with local working conditions and  industries, and the innovative approaches states can provide in  addressing safety and health hazards. In addition, these programs can be  cost-effective for the federal government because of the resources states  provide that supplement federal resources. However, when states face  challenges in administering their programs, it can lead to performance  issues which, if not addressed in a timely manner, may persist and result  in inadequate safety and health protection for workers.
OSHA cannot resolve many of the root causes of states’ staffing  challenges because it does not control how states set their compensation  policies, but the agency ultimately remains responsible for protecting the  safety and health of workers in those states and can take steps to support  them in addressing their challenges. When these steps are not adequate  to address states’ performance issues, it is imperative that OSHA hold  states accountable for developing concrete plans that address their  specific challenges and performance issues, and if necessary, step in  quickly to shore up the state-run programs so that they are at least as  effective as the federal program. OSHA’s ability to intervene quickly,  however, depends on whether states have obtained final approval for  their state-run programs because it does not have the authority to  conduct enforcement in states with final approval without having the state  agree to voluntarily relinquish its final approval status, revoking the state’s  final approval status, or withdrawing approval of the state plan entirely, all  of which can be very time-consuming processes, some of which could  also entail certain notice and hearing procedures. Moreover, OSHA is  cautious about reassuming concurrent enforcement authority in states  with final approval status given the resources required for OSHA to do so,  including devoting the time of its inspectors and setting up operations in  the state. Equipping OSHA with additional tools for intervening more  quickly in such situations could expedite its ability to provide assistance to  challenged states without jeopardizing the safety and health of workers.  In addition, OSHA has had experience in resuming federal enforcement  of state-run programs and, while circumstances may differ from one state  to the next, not documenting lessons learned could leave the agency  without the critical institutional knowledge needed to respond to situations  in the future.
section_title: Matter for Congressional Consideration
paragraphs: Congress should consider amending the Occupational Safety and Health  Act to provide a mechanism for OSHA to more quickly intervene in state- run occupational safety and health programs with final approval status, as  appropriate, to expedite federal OSHA assistance when necessary to  ensure adequate enforcement of those programs that are experiencing  challenges.
section_title: Recommendations for Executive Action
paragraphs: To better assist states in ensuring they have sound occupational safety  and health programs, we recommend that the Secretary of Labor direct  the Assistant Secretary for Occupational Safety and Health to take steps  to help address challenges that have posed long-standing risks to states  with state-run occupational safety and health programs in training staff to  administer their programs. These steps could include leveraging existing  federal and state resources to develop more effective and efficient ways  to access and deliver training, such as partnering with OTI’s Education  Centers and systematically coordinating opportunities for newly hired  state inspectors to obtain on-the-job training, such as by shadowing  experienced inspectors from OSHA or other state-run programs.
We also recommend that the Secretary of Labor direct the Assistant  Secretary for Occupational Safety and Health to identify states with  challenges that need to be addressed and require those states to develop  timely plans for addressing their challenges, and if such plans are not  developed, to establish time frames for when OSHA would resume sole  or concurrent federal enforcement responsibility for the state-run  program. This process should be tailored to the state’s unique  circumstances.
Finally, to better position the agency to respond to states facing  challenges, we also recommend that OSHA document lessons learned  from its experiences in assisting states with their enforcement  responsibilities and resuming federal enforcement of state-run programs.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to the Secretary of Labor for review and  comment. We received written comments from OSHA, which are  reproduced in their entirety in appendix IV. OSHA acknowledged the  major staffing challenges that state-run programs face and agreed with  our recommendations. In particular, OSHA noted it has taken steps to  help address states’ training challenges and will explore more effective  and efficient ways to access and deliver training. Furthermore, OSHA  pointed out that it will continue to use a variety of strategies to ensure that  the states successfully and quickly address their challenges. However,  the agency cited resource limitations, legal obstacles, and states’ unique  circumstances as factors that limit its ability to move quickly to resume  federal enforcement responsibility. In addition, OSHA welcomed the  recommendation to document lessons learned and cited it as instrumental  in providing insight for future instruction and guidance to regions and  states. Finally, OSHA provided technical comments which we  incorporated into the report, as appropriate.
As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the appropriate  congressional committees, the Secretary of Labor, and other interested  parties. In addition, the report will be available at no charge on the GAO  website at http://www.gao.gov.
If you or your staffs have any questions concerning this report, please  contact me at (202) 512-7215 or moranr@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. Key contributors to this report are listed in  appendix V.
section_title: Appendix I: GAO Survey of the State-Run Programs
paragraphs: To learn about sources of state funding, state staff experience levels,  state legislation or administrative actions affecting state-run programs,  and state occupational safety and health standards, we surveyed the 22  state-run programs that cover both private sector and state and local  public sector workers, and obtained a 100 percent response rate.
We conducted this survey via e-mail from May 2012 to June 2012. GAO  staff designed the questionnaire in collaboration with a GAO survey  specialist and a GAO attorney. To ensure the questions were relevant  and clearly stated, we pretested the questionnaire with two officials from  the Occupational Safety and Health State Plan Association, who also  serve as administrators of the state-run programs in New Mexico and  North Carolina. In addition, during a site visit to one state-run program  (California), we discussed the survey questions and the state’s responses  to ensure the questions were correctly interpreted.
subsections: section_title: Survey Question (1)
paragraphs: Which of the following sources of funds did your state use in federal fiscal  year 2011 to meet the funding requirements to obtain a federal grant  under section 23(g) of the Occupational Safety and Health Act?
subsections: section_title: State general fund
paragraphs: Earmarked and restricted accounts  within the agency  Arizona, California, Michigan, and Tennessee specified a tax on workers’ compensation premiums  as the state funding source.  Virginia state-run program officials reported that they are in discussions with the Virginia Workers’  Compensation Commission on a proposal in which they would provide matching funds to the state for  one full-time equivalent staff member as a pilot project to assist industries and employers identified by  the commission.
section_title: Survey Question (2)
paragraphs: Approximately what percentage of safety and health inspectors, that were  employed by your state occupational safety and health program as of  December 31, 2011, had the following years of service?
subsections: section_title: Safety inspectors
section_title: Survey Question (3)
paragraphs: In your state, has there been any legislation or administrative action,  either proposed or enacted in calendar years 2010, 2011, or 2012, that  would partially or fully limit the state’s responsibility for occupational  safety and health (e.g., returning enforcement authority to OSHA for a  certain group of workers or withdrawing the state plan altogether)?
The program’s designation has been changed from final  approval to initial approval status.
Legislation was introduced to eliminate the state-plan  program and return responsibility to OSHA. This legislation  has not been acted on. Legislation was introduced and  passed to limit state-plan program rules to rules identical to  OSHA unless there is a clear and convincing need to go  beyond.
subsections: section_title: Yes
paragraphs: South Carolina returned whistleblower program coverage to  OSHA.
section_title: Survey Question (4)
paragraphs: Does your state have occupational safety and/or health standards that  are substantively different from federal standards or that cover hazards  for which there are currently no federal standards?
Seventeen state-run programs responded “yes”
Five state-run programs responded “no”
section_title: Examples of State Responses Regarding State Occupational Safety and Health Standards That Differ from the Federal Standards
paragraphs: Examples of state occupational safety and health standards that  respondents indicated differ substantively from federal standards include  states’ requirements for employers to have written safety programs,  permissible exposure limits for hazardous substances at different levels  or for substances not covered by federal standards, and agricultural  standards that cover additional areas not addressed by the federal  standards.
section_title: Appendix II: Staffing Levels for State Safety and Health Inspectors, Fiscal Years 2012 and 2013
subsections: section_title: Number of Safety Inspectors
paragraphs: Some states’ staffing figures include 100 percent state-funded positions.
section_title: Appendix III: Salary Ranges for Federal and State Safety and Health Inspectors, 2012
subsections: section_title: Safety Inspectors
paragraphs: Federal (OSHA)
section_title: Average
paragraphs: In its technical comments on our report, OSHA provided Utah’s responses to its salary survey.
section_title: Appendix IV: Comments from the Department of Labor
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Meeta Engle, Assistant Director;  Linda Siegel, Analyst in Charge; Bryan Rogowski; and Suzanne Rubins  made significant contributions to this report. In addition, assistance and  guidance were provided by Susan Aschoff, Sarah Cornetto, Mary  Crenshaw, Gretta Goodwin, DuEwa Kamara, Stu Kaufman, Lara Laufer,  Kathleen Peyman, Kathy Leslie, Luann Moy, Mimi Nguyen, Carol Patey,  Paul Schearf, and Kathleen van Gelder.
section_title: Related GAO Products
paragraphs: Workplace Safety and Health: Further Steps by OSHA Would Enhance  Monitoring of Enforcement and Effectiveness. GAO-13-61. Washington,  D.C.: January 24, 2013.
Whistleblower Protection: Sustained Management Attention Needed to  Address Long-standing Program Weaknesses. GAO-10-722.  Washington, D.C.: August 17, 2010.
Occupational Safety and Health: Changes Needed in the Combined  Federal-State Approach. GAO/HEHS-94-10. Washington, D.C.: February  28, 1994.
Occupational Safety and Health: Changes Needed in the Combined  Federal-State Approach. GAO/T-HRD-94-3. Washington, D.C.: October  20, 1993.
Occupational Safety & Health: Inspectors’ Opinions on Improving OSHA  Effectiveness. GAO/HRD-91-9FS. Washington, D.C.: November 14,  1990.
Occupational Safety & Health: Options for Improving Safety and Health in  the Workplace. GAO/HRD-90-66BR. Washington, D.C.: August 24, 1990.
Occupational Safety & Health: California’s Resumption of Enforcement  Responsibility in the Private Sector. GAO/HRD-89-82. Washington, D.C.:  April 17, 1989.
OSHA’s Resumption of Private Sector Enforcement Activities in  California. GAO/T-HRD-88-19. Washington, D.C.: June 20, 1988.
OSHA’s Monitoring and Evaluation of State Programs.  GAO/T-HRD-88-13. Washington, D.C.: April 20, 1988.