The National Employment Law Project claimed Occupational Safety and Health Administration (OSHA) enforcement activity has declined in the past two years. The report, “Workplace Safety Enforcement Continues to Decline in Trump Administration,” points to a low number of OSHA inspectors as the primary cause. The full picture, however, is likely more complicated.

According to NELP’s analysis:

• “Safety enforcement activity continues to decline under the Trump administration, dropping in FY 2017 and falling even further in FY 2018;”
• “The number of OSHA inspectors under the Trump administration is now at a historic low;”
• “Not just from budget cuts, but from a failure to fill vacancies in a timely manner;” and
• “The agency has all but stopped issuing enforcement-related press releases, abandoning the deterrent effect that this kind of publicity produces.”

Behind the numbers

Making its case for OSHA enforcement being at a lull, NELP points to a drop in inspections beginning in fiscal year 2017. FY 2017 actually began October 1, 2016—before the Presidential election.

In fact, by total number of inspections, OSHA’s enforcement activity has been declining for several years from its peak of nearly 41,000 in 2012. In FY 2017, inspection totals were actually up slightly from the previous year. In FY 2018, federal OSHA conducted 32,020 inspections, compared to 32,408 in FY 2017.

There are a likely a number of factors that explain the downward trend. Staffing levels may play a role, as federal agencies have struggled to replace retiring employees for years. However, in 2015, OSHA shifted to an enforcement weighting system that accounts for the complexity of an inspection rather than simply counting the number of inspections. This system, which is still in use, encourages area offices to conduct these complex inspections (for issues such as ergonomics, process safety management, or workplace violence) rather than focusing on more straightforward inspections that can be completed quickly. This shift likely explains some of the decline in total inspections.

In addition, federal OSHA only covers about half of U.S. employers—state plans handle enforcement in the private sector in 22 states, and an additional six states have state plans that cover the public sector only. State plans actually conduct more total inspections than federal OSHA. In FY 2018, state plans conducted 40,993 inspections.

Enforcement happens

OSHA can and does inspect workplaces and still issues citations and assesses penalties, often high-dollar penalties. For example, in calendar year 2019, OSHA has assessed and publicized several six-figure penalties, including:

• Paper manufacturer von Drehle Corp. for several workplace safety hazards with $303,657 in penalties, including one for the maximum amount allowed by law;
• Crown Roofing LLC for exposing employees to fall hazards at two separate residential worksites in Florida with fines of $265,196;
• Musical instrument manufacturer Conn-Selmer Inc. for exposing workers to copper dust and machine hazards with penalties of $200,230;
• Tap Rack Bang Indoor Shooting Range LLC for exposing employees to unsafe levels of lead with penalties totaling $214,387; and
• RKM Utility Services Inc. for failing to protect workers from hydrogen sulfide after an employee died after exposure to dangerous levels of the gas while working in a trench with penalties of $422,006.

Fewer press releases?

NELP contends that OSHA has “all but halted” press releases about enforcement actions. According to NELP’s figures, the agency issued 470 press releases in 2016 about enforcement activities and 158 in 2018.

NELP’s argument is that although OSHA cannot inspect every workplace, the threat of an OSHA inspection encourages employers to comply with the occupational safety and health statute and its regulations. NELP argues that failing to publicize enforcement may lead employers to “cut corners” on worker safety. However, as the numbers show, although OSHA may be issuing fewer press releases than it did during the Obama administration, it has not stopped the practice altogether, particularly for high-penalty cases.

Other employer concerns

Regardless of trends in OSHA enforcement, there are disincentives other than OSHA citation risks to ignoring worker safety and health, including productivity losses, workers’ compensation claims, increases in workers’ compensation insurance premiums, and many more.

With unemployment at historic lows, working conditions can become a competitive advantage in filling employee vacancies. Workers can share information about working conditions on websites like Glassdoor, Indeed, and LinkedIn. Investing in safety can help attract quality employees and pays dividends far beyond the OSHA citations it prevents.