I remember the outrage a few years back over the healthcare death panels allegation. But workplace safety agencies like OSHA make life and death decisions all the time. For example, if we know that reduction in a carcinogen will lead to a very small decrease in instances of workplace cancer, but removing the carcinogen will be very expensive, what do we do?

OSHA answers this question using a cost-benefit analysis as well as a more subtle determination of the economic feasibility of proposed regulations. These decisions often necessarily balance the cost of workplace regulations with the number of lives lost or diminished. But after all the data is in, somebody has to make a decision.

The system probably works best when professional policy makers make these decisions, informed by the best science available. But this article shows what can happen when politicians put a thumb on the scale.

It is generally accepted that beryllium inhalation can cause lung cancer and other lung disease, including the aptly named berylliosis. Beryllium is found in coal slag, which is a byproduct of coal fired power production. Coal slag also happens to be a very cheap, very effective abrasive for blasting rust off of ships. OSHA has been moving towards more carefully regulating and monitoring beryllium in the workplace in an effort to reduce lung disease among shipyard workers. But, as the article shows, that effort is at risk of being sidetracked, not by changing the standard, but by eliminating the monitoring. In a recent update, OSHA adopted the new beryllium standards, including the monitoring, but deferred the industry compliance date until September of 2020.

Ideally, well informed workplace regulations will work hand in hand with workers’ compensation systems to increase workplace safety. In North Carolina for example, an employer whose violation of a safety regulation leads to an injury or illness may have to pay a 10% penalty on workers’ comp benefits related to that violation.

Safety regulations can also be helpful in determining whether a workplace illness is related to an occupational exposure, especially in cases where causation can be challenging to prove. For example, exposure to benzene levels above the OSHA standard may help a doctor decide is a worker’s lung cancer is related to his employment. But for the system to work the level of exposure must be monitored. Removing the monitoring, as OSHA considered doing with beryllium, undercuts the effectiveness of the regulation.

Safety regulations can also help economically allocate the costs of workplace injuries and illnesses to business. One of the core purposes of workers’ compensation is to be sure the cost of workplace injuries is borne by the employer, who stands to benefit from the employee’s labor. Workers’ comp prevents the employer shifting the costs of workplace injuries from the employer to governments, charities, employees or the public at large. Workplace injuries are a cost of doing business that should be borne by the employer. Essentially, workers’ comp is an anti-cost shifting economic program. It is not only fair that business pay the full cost of production but it is economically sound. But as the article relates, sometimes powerful political interests get in the way.

Kevin Bunn is a Board Certified Specialist in North Carolina Workers’ Compensation Law. Please call or email for you free workers’ comp consultation.



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