The Silica Standard: A Case Study of Inequality in Worker Health and Safety Standards

Back in March, the Occupational Safety and Health Administration (OSHA) finalized its long-awaited silica standard, requiring employers to reduce workers' exposure to the toxic, cancer-causing dust so common to construction and fracking sites, among other workplaces. OSHA estimates that the new standard will prevent more than 600 deaths and 900 new cases of silicosis annually. That is certainly commendable, but the kudos would be more heartfelt if the new standard had been adopted decades earlier and if it fully addressed the significant health risks to workers. 

The unconscionable delays and unjustified concessions awarded to industry at the expense of workers' health and safety are hardly unique to the silica standard; rather, they are the product of our broken regulatory process, which is riddled with analytical requirements designed to generate business-friendly outcomes. 

In the case of the silica standard, OSHA set the permissible exposure level (PEL) at 50 micrograms per cubic meter (µg/m3) – the level recommended by the National Institute for Occupational Safety and Health (NIOSH) in 1974. But despite clear scientific evidence of the significant risks to workers, OSHA took four decades to finalize the rule because of intense industry pressure to stop it. 

Industry leaders hired lobbyists to fight the new standard on the grounds that reducing exposures would be prohibitively expensive to businesses, ignoring the fact that workers and taxpayers have historically paid the costs of these hazards. During this 40-year fight, industry continued business as usual, and working families shouldered the burden of ongoing silica exposure by way of medical expenses, poor quality of life, and emotional distress due to illness or injury – and in thousands of cases, death. 

While the standard is a vast improvement over the status quo, OSHA gave industry some free passes in the final rule, such as deciding not to adopt an exposure limit more protective than 50 µg/m3 on the basis that doing so wouldn't be "technologically feasible." In other words, instead of incentivizing companies to develop new technology to better safeguard workers' health, OSHA chose to set the standard at a level below which significant health risks still exist. The consequence is that the new rule leaves thousands of workers unprotected from exposure to silica at dangerous levels. 

The inequities in this sorry tale of regulatory dysfunction scream out for justice. Odds are that not many C-suite types at construction and fracking companies are suffering from silicosis. Rather, it's the blue-collar workers who are wronged. 

Sadly, the inequities will continue even now that the standard is final. 

In OSHA's 2015 report, Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job, the agency found that employers regularly evade their responsibility for worker health and safety and that states' workers compensation systems don't provide injured workers the full benefits promised in exchange for giving up their right to file suit against their employers. According to figures cited in the report, "Workers' compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families, and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent." 

Workers employed by companies that have "opted out" of their states' workers' compensation system – including many in Texas and Oklahoma – may have even less chance of recovering benefits under their employers' "alternative benefits plans." According to ProPublica's hard-hitting coverage of this issue, these alternative plans "provide lower and fewer payments, make it more difficult to qualify for benefits, control access to doctors and limit independent appeals of benefits decisions." 

Some alternative plans exclude certain workplace injuries, such as occupational exposures (including exposures to silica). In short, the real aim is for companies to pass their costs onto workers and taxpayers (although it is worth noting that over the long-term, passing costs to workers and simultaneously keeping wages extremely low will leave workers without money to reinvest in the marketplace, ultimately driving down supply and demand and damaging the economy). 

As noted at the outset of this post, these inequities are likely to appear in every new worker protection because our regulatory system continually compromises people's health and safety for the benefit of businesses' bottom lines. 

Addressing these inequities will require, at minimum, removing burdensome procedural hurdles from our regulatory system; guarding against undue industry influence at all stages of rulemaking; strengthening our environmental, labor, financial, food, and consumer protection laws to address new and emerging risks; and allocating sufficient resources to the agencies that implement and enforce our laws so they can effectively carry out their missions. These are major reforms, and achieving them will require hard work by lawmakers, government officials, employers, academics, activists, and the public, but they can and must be tackled.