|California Coalition for Workers Memorial Day|
Cal-OSHA: Going Down the Tubes?
By Larry Rose M.D., M.P.H.
The present ratio of actual inspectors (187) to workers (17,219,000) is 1:92,090. The International Labor's Organization's recommended inspector-to- worker guideline ratio for developed, industrial countries is 1: 10,000, and as Table A indicates, other West Coast jurisdictions have come much closer than California to meeting that standard.
Table A: Number of Health and Safety Inspectors per Worker:
Washington State: 1:26,904
British Columbia: 1:10,564
The trends at Cal-OSHA show a shocking decrease of 32% in the number of on-site inspections, and of cited violations over the past 14 years. This alarming trend correlates with the steady deficiencies in the ratio of the number of functioning enforcement inspectors to the total number of employees in the entire State of California.
The decline in inspectors has led, not surprisingly to failures by Cal-OSHA to meet the clear requirements in the labor code: inspections are not being opened within the required 14 day post-complaint period, inspections are not being closed in a timely fashion, and many serious complaints are being declared "invalid" at the discretion of the 21 district managers. Worse yet, follow-up inspections for “serious” citations are not being carried out, there is less onsite verification of the correction of cited hazards, and there are weakened defenses of legal appeals by employers. Furthermore, existing internal programs, such as targeted inspections in "high hazard industries", and safety management are short changed, and a concomitant reduction in previously programmed inspections in high-risk industries such as agriculture, construction, garment, and restaurant industries has occurred.
Cal-OSHA effective enforcement has been essentially eliminated. At its inception under Governor Jerry Brown in the 1970s, there were six public health medical officers, and several occupational health nurses enforcing health standards. The last public health M.D. position was eliminated two years ago. Medical expertise is of enormous importance in protecting California's work force from a multiplicity of hazardous chemicals, infectious diseases, and repetitive strain motion injuries. At present there are only about 80 professionally-trained field active industrial hygienists, that are college-level professionals primarily trained to measure various hazardous exposures and to apply mandated exposure limits to airborne hazardous exposures when deciding whether to issue violation citations.
Unfortunately, the existing health standards as mandated are inadequate because they were set without reference to the possibility of multiple exposures in many work places. Serious acute, and chronic long term illnesses are frequently caused by synergistic multiple chemical exposures. Worse yet, a whole universe of new hazards inherent in nanotechnology, genetic engineering, biotechnology, indoor air quality, infectious diseases, and new chemicals and pesticides exist that have yet to be adequately studied in the various workplaces. The importance of toxicological screening for endocrine disruption has not yet been applied for chemicals. This has particular relevance for female employees of child baring age.
Cal-OSHA has the legal authority under the Labor Code to establish new standards and procedures, and as well to require strict recording of all occupational illness and injuries, the retention of medical records with certain exposures for up to 30 years, and to require medical surveillance with certain highly hazardous substance exposures. These mandated functions have been seriously compromised.
There has been a serious problem with employers not recording an increasing proportion of occupational illnesses and injuries by setting it up so that most of these injuries are only categorized as in need of "first aid", and therefore stay at work, or return to the work place the next day, and legally bypassing the requirement that a injury occurrence must be recorded on the injury, and illness log. Also, this is often accomplished by pressuring the physician the disabled worker is sent to, to not recognize the injury or illness as being caused by the work process. The employer routinely decides what primary care provider the injured employee is sent to. By not truly recording all injuries, and illnesses in the log, the employers avoid higher worker's compensation rates, and the possibility of a Cal-OSHA programmed or targeted inspection.
The Tip of the Iceberg Examples
Several recent dramatic examples illustrate the failure of Cal-OSHA to effectively respond to serious threats to life and health in California’s workplaces:
1) "Agraquest", a biotechnology corporation, was seeking to turn a selected naturally occurring microorganism into a pesticide when an exposure to that microorganism caused a life-threatening illness in a professional employee. That illness was recognized by the employee’s primary care medical practitioners as a workplace-induced illness. The Cal-OSHA investigator assigned to Agraquest totally failed to address the problem that also threatened the surrounding community, and issued only a "laboratory hood" citation. The real issue was the level of laboratory protection needed to protect the employees, and the surrounding community. Without knowing all the facts in the case, I would guess that Level 4 protection—the same required when working with any virulent microorganism could have been considered in this workplace laboratory considering the seriousness of this employees illness. Dealing with infectious disease hazards in the workplace requires the expertise of an independent public health physician, but Cal-OSHA sent an industrial hygienist compliance officer.
2) Over 80,000 new chemicals that have been released and have become the chemicals that are now in commercial circulation have not been adequately tested for general public health safety. Only 15% of these chemicals have been barely adequately tested for acute toxicity. Usually workers exposed to these untested chemicals are the equivalent of the "canary in the coal mine" who when exposed to carbon monoxide, “sway noticeably on his perch” thus warning the miners of the danger of an odorless poisonous gas.
The recent shocking example of "popcorn lung disease" is a good example of a worker "body count" occurring and alerting the worker and public health community to the dangers of a particular hazardous chemical. Of course the illness should have been called "chemical lung destruction disease". Diacetyl is used in processed food and beverages as an additive to give a buttery taste. It is part of the oily substance chemical mix that is put on commercial popcorn. A worker at the Foothill Ranch flavor manufacturing facility had been exposed to the heated fumes, and over a period of a year and a half developed devastating lung destruction called "bronchiolitis obliterans", and 80% of his lung function was destroyed to the point that only a lung transplant offered any life saving hope. It took CalOSHA over six months after the diagnosis of bronchiolitis obliterans” to fine the employer, and the penalty was only $40,000 for the destruction of a worker’s life, and the employer failed to report the illness. This fine was legally appealed by the employer. Nationally there were many more worker cases of lung disease reported from diacetyl exposures, and one documented case occurred in a consumer. It makes one wonder about the popcorn fumes that young theater workers are constantly exposed to.
The Cal-OSHA response was to have an industry physician associated with the Food and Extract Manufacturers Association do the medical screening and evaluations at the 20+ workplaces which utilized diacetyl. The chemical manufacturers of diacetyl were not required to provide a list of all of the firms they supplied with diacetyl in California. To this day, CalOSHA is uncertain whether or not these employers comprised all of the industrial users of diacetyl in the state. Assembly Bill 816, which would have required that this information be provided by chemical manufacturers in California, was vetoed by Governor Arnold Schwartzenegger who declared it an "invasion of privacy".
The Cal-OSHA response to the “popcorn lung” problem was dictated by Leonard Welsh, Acting Chief of Cal-OSHA, who sent in non-enforcement “Consultation” agents of Cal-OSHA to the incomplete list of twenty odd industrial users of diacetyl. Cal-OSHA’s treatment of this case illustrates how Mr. Welsh has developed an ever-expanding emphasis on so-called "voluntary compliance" for the large corporations even in life-threatening cases. Large chemical and electronic companies in California have become effectively exempt from programmed “enforcement” inspections if they sign “voluntary compliance” agreements, even where they use dozens of notoriously toxic chemicals in their operations.
Another example of Cal-OSHA incompetence are the ongoing increasing deaths from heat stress or hyperthermia in agriculture. Until a death occurs Cal-OSHA essentially ignores the requirements for rest periods, drinking water, and necessary rest in the shade.
Addressing the Cal-OSHA Enforcement Disaster
The insufficient level of enforcement staffing and the elimination of all Public Health Medical Officers have lead to a inability of the agency to meet its mandated responses to workplace health and safety as enumerated in the California Labor Code.
In 1975 the statewide program had six medical officer physicians, three nurses functioning in enforcement, and a much higher ratio of inspectors to workers. In 1975, Cal-OSHA was the strongest state OSHA program in the country. Now, after death by a thousand cuts, it is one of the weakest enforcement programs in the United States, despite the increasing numbers of hazardous industries in the state.
The U.S. Court of Appeals decision in AFL-CIO v. Marshall, the established benchmark had been 805 inspectors for the State of California. Federal OSHA has recommended 334 safety, and 471 health compliance officers. Instead, under successive Republican California administrations, the enforcement staff numbers have shrunk to a total of only 187 inspectors of all kinds. If an effective committed administration were operating, thirty vacant field positions would be filled immediately and trained on an emergency basis, and five times as many inspectors plus 5 physician medical officers would be presented to the legislators as urgently needed to accomplish an effective Cal-OSHA. Anti-labor administration policies, plus weak statewide labor support have contributed to this dysfunctional Cal-OSHA picture.
Author: Larry Rose M.D., M.P.H., 28 years as the senior Public Health Medical Officer for the statewide Cal-OSHA program (recently retired), Occupational/Environmental Medicine department at UCSF.