Workers’ comp cuts still on the table in Washington Legislature
By DAVID GROVES
(OLYMPIA) — The Washington
State Senate budget makes reference to
Senate Bills 5127 and 5128, which
would lower or eliminate age restric-
tions on compromise-and-release buy-
outs of injured workers. The bills are
technically dead, having missed the
cutoff deadline in the House, where
Democratic leaders share Gov. Jay In-
slee’s opposition to further “reform” of
the workers’ compensation system at
least until the 2011 legislative changes
have been fully implemented.
Organized labor and other injured
worker advocates strongly oppose these
bills because expanding buyouts to
younger workers puts more at risk of
being shortchanged. Young workers, in
particular, would be making critical fi-
nancial decisions in an atmosphere of
great stress and uncertainty, given the
longer stretch of their work lives ahead.
(See: “Four Reasons Why Our Current
Workers’ Compensation System
WORKS.”)
By including reference to SB 5127
and 5128 in their budget, the Republi-
can-controlled Senate is saying it con-
siders the bills “necessary to implement
the budget” and therefore exempt from
the cutoff deadlines. They accom-
plished this by pretending the state will
save $10 million in the next biennium
by passing either bill. (Apparently, it
doesn’t matter which bill, even though
one lowers the buyout eligibility age
from 55 to 40 and the other eliminates
all age restrictions. Either way — poof
— $10 million!)
How does getting more injured
workers to accept less money up-front
than they would otherwise receive save
the state money? Good question, con-
sidering that any systemic cost savings
benefit the workers’ compensation state
fund — financed by employers and
workers — and not the state’s general
fund. The only way the budget can
book any savings is if the state’s own
workers’ compensation rates, as an em-
ployer covering state employees, drop.
So, the Senate budget makes two as-
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... Silica dust can cause a host of occupational lung diseases
(From Page 3)
woman in the nation safe and healthful working
conditions.”
And the law gave OSHA its own rigorous and
lengthy public review process. After careful sci-
entific and technical study, the agency puts out a
proposed rule for public comment, and holds hear-
ings to get input on whether or not the rule is
needed, the science behind it, and whether it’s fea-
sible in terms of cost and technology. Then the
agency makes a determination whether to proceed
with the final rule.
But in 1993, President Bill Clinton issued Ex-
ecutive Order Number 12866, directing all federal
regulatory agencies, including OSHA, to submit
proposed regulations first to the OMB when they
would have significant economic impact. OIRA,
the OMB sub-unit, would review whether the reg-
ulatory agency had assessed the costs and bene-
fits of available alternatives, and then would ap-
prove it for further development, or propose
changes, within 90 days, with an opportunity for
one 30-day extension. President Bush kept the ex-
ecutive order in place, and so did President
Obama. The executive order says that if OMB
doesn’t complete its review in that time frame, a
regulatory agency can move forward without it.
But that hasn’t happened. Regulatory agency
directors — who are appointed by the president
— don’t push rules forward on their own when
OMB fails to meet its deadline to review proposed
rules. Instead, and the silica rule is just one exam-
ple, federal regulations to protect the public inter-
est — though authorized by previous acts of Con-
gress — increasingly fall into a kind of black hole
at the OMB.
“They’ve hijacked the rule,” says the AFL-
CIO’s Seminario, who has spent two decades in
Washington, D.C., fighting for worker safety.
“They’ve hijacked the public process. So instead
of it being a public process where everybody gets
to come in and make their comments to the agency
that has the expertise, OSHA, you have all these
industry groups going into closed-door meetings
with OMB, essentially having private hearings on
PAGE 6
the rule even before it sees the light of day in pro-
posed form.”
In the first six months of “review” on the silica
rule, OMB officials met eight times with industry
groups. Attendees included the National Industrial
Sand Association, American Road and Trans-
portation Builders Association, representatives of
brick companies, mineral companies, and
foundries, and on behalf of mining interests, a
lawyer from powerhouse lobby firm Patton
Boggs. Construction industry groups were there
too: Associated Builders & Contractors, National
Association of Home Builders, Independent Elec-
trical Contractors, Mechanical Contractors Asso-
ciation of America, Mason Contractors Associa-
tion of America, and the National Roofing
Contractors Association. The meetings weren’t
open to the public.
At the time, the head of the Office of Informa-
tion and Regulatory Analysis was Cass Sunstein, a
friend of Obama’s from their days teaching at Uni-
versity of Chicago. Sunstein left OIRA in August
2012 to return to teaching at Harvard Law School.
In December, Sunstein submitted an article to
the Harvard Law Review, intended to clear up
myths and “pervasive misunderstandings” about
OIRA. Those closed-door meetings with business
groups, Sunstein wrote, don’t matter; the meetings
just take place because OIRA “accepts all com-
ers.” Nor is politics a consideration, he wrote, “if
the term refers to public reactions and electoral
factors.” In Sunstein’s telling, OIRA is just an “in-
formation aggregator,” a kind of bureaucratic talk
shop where apolitical experts from multiple fed-
eral agencies weigh in on the impacts of proposed
rules. If the agency representatives don’t achieve
consensus, there can be delay, Sunstein wrote.
If there’s one revealing sentence in the 38-page
Harvard Law Review article, it’s this one: “Insofar
as the President and his closest advisers are clear
on their priorities, OIRA will of course be made
aware of their views and act accordingly.”
In other words, if the president wants OIRA to
release the silica rule, it will.
Union officials are upset about inaction on sil-
ica, but they’re not the only ones. U.S. Sen. Tom
Harkin of Iowa is chair of the Senate Subcommit-
tee on Employment and Workplace Safety, which
oversees OSHA. In July 2011, once the 90-day
rule had come and gone, Harkin wrote to OMB
asking that the regulation be released so that
OSHA’s public review process begin. He got the
brushoff.
Nine months later, Harkin convened a Senate
hearing about the impact of OSHA rule delays on
worker safety. Randy Rabinowitz, director of reg-
ulatory policy at the non-profit watchdog group
OMB Watch, testified that OSHA is finding it
more difficult to respond to threats to workers
health because the agency is required to complete
an ever increasing array of onerous, duplicative,
and unreasonable regulatory analyses.
“In the early days of its existence, it took
OSHA from six months to two years to develop
major rules — even controversial ones that ad-
dressed asbestos and vinyl chloride hazards,” Ra-
binowitz told senators. Now it takes almost eight
years on average to promulgate an OSHA stan-
dard. And in the case of the silica standard, 39
years and counting.
NORTHWEST LABOR PRESS
With the federal government doing nothing,
others stepped in. New Jersey banned dry cutting
of concrete as an unsafe practice. So did Califor-
nia. Responsible employers are voluntarily adopt-
ing best practices. Union training programs like
Lenczowski’s are getting the word out to mem-
bers about silica.
On the eve of the two-year mark since the silica
rule went to OIRA, AFL-CIO President Richard
Trumka — himself a former coal miner and
mineworkers union leader — published a column
about it in the Huffington Post. “The delay in job
safety protections for silica is inexcusable and
heartless,” Trumka wrote. “It's time for industry
opponents to stand down and time for the White
House to stand up for working men and women.”
On Feb. 27, Harkin sent a second letter to
OMB, also signed by Washington U.S. Sen. Patty
Murray, and Congressmen George Miller and Joe
Courtney: “This unwarranted delay is deeply con-
cerning to us, as leaders of Congressional Com-
mittees with jurisdiction over worker safety and
health, and it is dangerous for the nearly two mil-
lion U.S. workers who toil at great risk of expo-
sure to unsafe working conditions due to silica ex-
posure.”
“Modernizing OSHA’s crystalline silica stan-
dard is a commonsense and necessary improve-
ment to worker safety,” the letter continues. “In
many cases, protections are as basic as a water
hose or spray. It is intolerable that workers are not
benefiting from these protections due to road-
blocks in the regulatory process. Moreover, there
is simply no justification for OIRA’s delay.”
Addressed to OMB deputy director Jeffrey
Zients, the letter requests a “date certain” upon
which that review will be completed.
The reply came from OIRA deputy adminis-
trator Dominic Mancini: “While workplace safety
is a priority of this administration, it is not OMB’s
practice to provide dates in advance for the is-
suance of agency regulation.” OIRA’s review of
the silica standard, Mancini wrote, is currently on-
going. “Let me assure you that the OMB appreci-
ates and shares your interest in worker safety and
concern about exposure to crystalline silica.”
APRIL 19, 2013