The Occupational Safety and Health Administration likely will move away from Obama-era heightened enforcement to a new philosophy of offering preventative measures to increase worker safety, a former leader of the agency says.
FedEx executive Scott Mugno, a veteran of the company whose stints include senior lawyer, is expected to take the helm as assistant secretary of labor for OSHA. His nomination is pending before the Senate Health, Education, Labor and Pensions Committee.
Ed Foulke, who held the top OSHA job under the George W. Bush administration from 2006 to 2008, says there will likely be a shift in philosophy under the Trump administration away from Obama-era enforcement priorities.
Foulke is a partner at Fisher Phillips in its Atlanta and Washington offices and co-chairs the firm’s workplace safety and catastrophe management practice group. He spoke with The National Law Journal recently about what to expect from OSHA and what challenges the new leader could take once in position.
“I want to get my clients to a point you don’t care if OSHA comes in. If you are just complying with the OSHA standards, you at best only have a fair safety program,” he says.
The conversation was edited for length and clarity.
National Law Journal: What were your priorities when you took on the job of assistant secretary of OSHA?
Foulke: I was looking at the agency overall. I looked at different numbers, particularly the inspection numbers and fatality, injury and illness and what industries have biggest issues from the standpoint of fatalities and injuries. I was looking at that. I was the first confirmed attorney, assistant secretary who was a lawyer. My background was developing safety programs, so I wanted to look at areas where we could make a difference, which was with small and medium-size employers. I was looking at those, as opposed to the big players, and asking, “OK, how can you help those kind of people?” We worked on developing partnerships and alliances.
When you took over, was there a shift in philosophy?
My predecessor (a Republican nominee) focused on a balanced approach. There was a lot of compliance assistance even in the Clinton administration. You couldn’t say they were focused on enforcement. During the Obama years, they believed enforcement was important and that’s where they come from. The unions are strong on this issue and thinking was enforcement is where you have to go. But even in the Clinton administration, compliance and enforcement assistance were considered important ways to prevent fatalities and injuries. This was not case in Obama years. It was almost purely an enforcement agency.
What is the difference in the philosophies, enforcement versus compliance assistance?
Enforcement means you have frequent doing inspections and violations. With compliance assistance, you’ll actually have people that are doing outreach to employers to help them be safe and educating them on the enforcement standard. The compliance assistance philosophy is, “Here we are going to provide assistance to you.” OSHA provides every state with money for what they call consultation for small and medium-size employers to come in and do an audit to improve their safety program. They will write up a report and areas of deficiency that need to improve. The caveat is they will forward that to the enforcement side of OSHA and do an inspection. Partnerships and alliances are part of compliance assistance, where trade associations work with particular industries to create model policies and procedures.
What is the role of the assistant secretary?
You’re overseeing the agency and making sure it’s running properly. Part of that is oversight for each of the regions. There are 10 regions out there, and you are making sure they are doing their inspections and have regional emphasis programs in place. For me, it was not only looking for inspections but how many programs there were in place, such as partnerships. That was more my focus. To be quite frank, there were few alliances and partnerships in the last eight years.
Tell me more about the Obama administration approach to OSHA? How do these philosophies differ specifically?
Enforcement was their key area of focus. They moved people into enforcement roles and hired more inspectors. They were focused on whistleblowers. It was definitely an enforcement-type model and that’s OK. That’s what the unions had been asking for, for OSHA to do more inspections. The irony is, if you look at the last two years, I did more inspections than they did. The resources have been reduced and so on. I don’t think you can get to zero injuries just through enforcement.
I believe with compliance assistance philosophy, you actually outreach to more people. Penalizing people is not a way to get their actions. Mine was much more people helping people be safe. Where the problem exists most is with the small and medium-size employers. An inspection impacts one program. With programs that highlight best practices, you are impacting a lot of companies. You are reaching more people. OSHA has limited resources. It needs to step back and achieve the mission: to provide a safe and healthy workplace for all men and women in America.
What do you predict with any change under the Trump administration’s OSHA?
This is a tremendous opportunity for the agency to redefine itself. We need to realize that our budget situation may not get better. We won’t get 2,000 new inspectors. This is a time to reinvent itself and take a step back. What do we have to do to achieve the mission? We address that. What do we need to do? I would encourage the new head of OSHA as one of the first things he should do is have a meeting of all the senior staff. I’m not just talking about people in D.C. but also in the field, the regional administrators in the program.
Under the Obama administration, they were hitting large employers, as well as medium and small. They changed the process for reporting. One citation could mean lawyers are working for several days. They will lose in the long run, so they will stick to the model programs. These OSHA leaders should be saying, bottom line we want to protect the employees. We will drop the citation if you do X to improve safety. If you are willing to drop a citation, it might help safety in the long run for that company. We have scarce resources. We can’t be trying one-citation cases and tying people up for a day or two. You aren’t achieving your mission.
There are two big things out there. First, is small and medium-size companies. How do we get to the small employers? That is not an easy task. They are out there and don’t have them on the radar screen. How do we help them get good safety programs? They don’t know what standards are applicable to them. We have to be able to create alliances and partnerships with trade associations to create model procedures. We also need to increase jobs in the United States. We are increasing workers’ comp costs in the country. OSHA has the ability as an economic development tool for all the states.
What trends in health and safety in recent years do you think will be addressed?
OSHA can also address the opioid addiction problems. The new head of OSHA will need to decide how to address that epidemic. What can OSHA do? They can help develop model policies on drug testing. That’s not their expertise but you can work with other agencies to provide model policies and training modules.
If you look at fatalities numbers, those have gone up in the last couple years. I had the lowest injury rates and everything was down. And during the Obama administration, those numbers went up. Half of the work-related fatalities were car accidents. So, the question becomes, is this a real problem? I’m concerned the fatality numbers will go up, not because of unsafe work sites, but more people in vehicle injuries because of distracted driving. The numbers will keep going up. I see it every day at work, crossing over and are texting. I don’t know the answer. Maybe OSHA should be partnering with the National Safety Council or developing a working partnership to go to every legislature in the country with “no texting and driving” laws.
Did you notice any significant changes during the first year of the Trump administration?
No significant changes policy-wise but there were subtle changes. The Obama administration had this thing on its website with a rolling number of fatalities. They loved fatalities because it felt like it showed off the terrible employers. They were streaming names of people getting killed. I don’t see that helps safety and health. They were focused on trying to shame employers. I don’t believe that it does.
Will OSHA likely be more business-friendly moving forward?
It’s going to be more trying to help businesses ensure safe work sites and do greater outreach. You can’t tell people, “Be safe.” That does nothing to improve their safety. Tell them how to be safe. Our goal is zero injuries and fatalities. If you stop there, nothing will happen. The agency can help more employers to train people not only to comply, how do we train them to be safe.
What’s it like on the other side, guiding your clients through these issues?
I want to get my clients to a point you don’t care if OSHA comes in. If you are just complying with the OSHA standards, you at best only have a fair safety program. The OSHA health and safety standards are more the foundation of the safety and health program. A company can add things to it in order to ensure that you have a good safety program that they don’t get injured or killed. This requires risk assessments or job hazard analysis and looking at injury and illness to actually find a root cause analysis to find why it happened.
You can bring a horse to water but can’t make him drink. You can put stuff out there but you have to let them know why it’s important. Safety can be a profit center for every company in the United States. That’s where Osha needs to be: Be safe and also help companies be more profitable and competitive. We will create more jobs here. The bottom line question when they are doing all their risk assessments, can we be profitable moving here? What are the risk? In the long-run the risk assessment determines can we be profitable. This is the reality. The business reality.