Beveridge & Diamond
 

OSHA Administrator Nominee Has Big Ideas for OSHA

Beveridge & Diamond, P.C., July 31, 2009

On Tuesday, July 28, President Obama announced that he intends to nominate Dr. David Michaels as the Assistant Secretary of Labor for Occupational Safety and Health, in which role he will head the Occupational Safety and Health Administration (“OSHA”). 

Dr. Michaels is currently a Research Professor and Interim Chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services.  As a professor and epidemiologist, Dr. Michaels has examined the use of science in public policy and has conducted epidemiological studies on typographers, commercial pressmen, construction workers, bus drivers, and paper workers.  Last year, Dr. Michaels published a book entitled Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health, which argues that corporations have “manufactured” scientific uncertainty to thwart the regulation of various hazards.[1]

From 1998 to 2001, Dr. Michaels served as the Assistant Secretary for Environment, Safety and Health at the Department of Energy (“DOE”).  In this role he was responsible for protecting the health and safety of workers at nuclear weapons facilities.  He also developed the Energy Employees Occupational Illness Compensation Program to compensate nuclear-weapons workers who developed illnesses after exposure to radiation, beryllium, and other hazards, and oversaw the promulgation of the Chronic Beryllium Disease Prevention Rule[2] and the Nuclear Safety Management Rule.[3]

If Dr. Michaels is confirmed by the Senate, it is speculated that he will bring major policy changes to OSHA.[4]  In early 2009, Dr. Michaels wrote that “OSHA faces significant challenges” and “badly needs a change in direction and philosophy.”[5]  He suggested that “the objective of the Obama Administration should not be better/smarter enforcement,” but instead, “[a] bold campaign to change the workplace culture of safety.”  To meet this objective, Dr. Michaels suggested that OSHA: (1) issue a workplace injury and illness prevention program rule, (2) increase workplace health and safety capacity, (3) develop a new electronic recordkeeping and reporting system, and (4) initiate a campaign to “change the way the nation thinks about workplace safety.”[6] 

In 2007, in testimony before the Subcommittee on Employment & Workplace Safety of the U.S. Senate Committee on Health, Education, Labor &  Pensions, Dr. Michaels commented on the inadequacy of OSHA’s current regulatory standards and enforcement and discussed future directions for OSHA.[7]  He highlighted examples OSHA’s inadequate regulation and enforcement with respect to the hazards of beryllium, hexavalent chromium, and diacetyl.[8]  He also emphasized that ergonomics hazards are “the leading cause or workplace injuries” and “that there is no OSHA standard to protect workers from the hazard of poorly-designed work settings."[9]   To “better protect American workers from workplace hazards,” Dr. Michaels suggested that OSHA “move away from hazard-specific standard setting,” and suggested that OSHA instead issue a comprehensive workplace safety and health program standard akin to DOE’s nuclear safety enforcement system.[10]  He also suggested that OSHA return to using the Occupational Safety and Health Act’s general duty clause as an enforcement mechanism.[11]  Dr. Michaels noted that improved regulation and enforcement of workplace hazards will require Congressional action as well, and suggested that Congress mandate OSHA to issue certain health standards and to adopt ACGIH Threshold Limit Values for workplace exposures.[12]

In his book Doubt Is Their Product, Dr. Michaels criticized industry attacks on the science underlying OSHA’s ergonomics standard.  He conceded that the standard was “probably too far reaching,” because it was not limited to industries with high rates of repetitive strain injuries, but rather covered all industries.  He also criticized OSHA’s subsequent reliance on “toothless” voluntary ergonomics guidelines.[13]  These comments may indicate the future direction of OSHA regulation of ergonomics if he is confirmed.

The early reaction to the news of Dr. Michael’s impending nomination is mixed.  It has been met with praise by members of Congress and union leaders.  U.S. Rep. George Miller (D-CA), the chairman of the House Education and Labor Committee, stated that “President Obama is to be commended for his intent to nominate Dr. David Michaels” and that “Dr. Michaels’ expertise and leadership is needed as OSHA continues to restore vital health and safety protections for America’s workers.”[14]  Similarly, Peg Seminario, the AFL-CIO’s Director for Safety and Health, stated that “David Michaels is an excellent choice for this position.  He really does bring a level of experience and leadership to the agency that is sorely needed.  He also brings a deep commitment to worker protection.”[15] On the other end of the spectrum, Steve Milloy, the publisher of JunkScience.com, has stated that “Michaels supports the use of junk science as a basis for public policy and court decisions, representing a threat to employers, employees, consumers and taxpayers.”[16]  In support of this statement, Milloy referenced Dr. Michael’s involvement in the Project on Scientific Knowledge and Public Policy, an academic initiative that Milloy describes as being active in several product safety controversies.[17]

OSHA’s current acting Assistant Secretary and Deputy Assistant Secretary is Jordan Barab.  He will remain Deputy Assistant Secretary once a nominee is confirmed for Assistant Secretary.


[1] Michaels, David, Doubt Is Their Product:  How Industry’s Assault on Science Threatens Your Health (Oxford University Press 2008).

[2] 10 C.F.R. Part 850.

[3] 10 C.F.R. Part 830.

[4] See Stephen Lee, Safety, Health Researcher David Michaels Emerges as Front Runner for OSHA Head, Occupational Safety & Health Rep. (BNA) No. 39, at 403 (May 21, 2009).

[5] David Michaels, Bold campaign needed to change workplace culture, New York Committee of Occupational Safety and Health SafetyRep Newsletter (Winter 2009), available at www.nycosh.org/pdfs/OSHASafetyRep.pdf.

[6] Id.

[7] Testimony of David Michaels before the Subcommittee on Employment & Workplace Safety, U.S. Senate Committee on Health Education, Labor & Pensions (Apr. 26, 2007), available at help.senate.gov/Hearings/2007_04_26/Michaels.pdf.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Doubt Is Their Product, supra, at 120-23.

[14] Press Release, House Committee on Education & Labor, Chairs Miller and Woolsey Praise Expected Nomination of Dr. David Michaels as OSHA Head (Jul. 28, 2009), available at http://edlabor.house.gov/newsroom/2009/07/chairs-miller-and-woolsey-prai.shtml.

[15] Laura Walter, Obama to Nominate David Michaels to Head OSHA, EHSToday (Jul. 29, 2009), available at http://ehstoday.com/standards/osha/obama-nominate-david-michaels-osha-5818/.

[16] Press Release, Bizjournals, Obama OSHA Pick Supports Junk Science in Courts and Public Policy; Senate Should Probe Links with Trial Lawyers, Radical Environmentalists (Jul. 29, 2009), available at http://www.earthtimes.org/articles/show/obama-osha-pick-supports-junk,908684.shtml.

[17] Id.

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