Massachusetts Moves Forward on Protecting Public Employees. But millions remain without protection.

Question 1: What did the following workers have in common?

Mercer County village worker killed in industrial accident

MENDON, MERCER COUNTY, OH — A Village of Mendon employee was killed in an industrial accident Thursday at the village utility department, Mercer County Sheriff Jeff Grey said. Brendan Poling, 49, had climbed inside the bed of a dump truck carrying salt and it appeared he slipped into a salt auger, where another village employee discovered him, the sheriff said in a prepared statement released tonight.  Deputies were dispatched to the utility department, 340 E. Market St., just after 11:30 a.m. for a male stuck in an auger.  Poling, who was a Mendon resident, died at the scene, the sheriff said.  No word on whether the Occupational Safety and Health Administration has been contacted. OSHA, part of the federal labor department, usually investigates industrial accidents.

Omaha public works employee, who died on the job after being struck by car, remembered as a leader

PennDOT worker killed in I-99 crash

LOGAN TOWNSHIP, PA — State police at Hollidaysburg are investigating a fatal crash involving a vehicle and pedestrian Saturday along Interstate 99 southbound, north of Kettle Road in Logan Township. Officials say PennDOT employee Robert Gensimore, 45, of Spruce Creek, was setting up flares at 3:41 p.m., warning drivers of a crash scene on I-99.

Longtime CDOT employee dies after vehicle hits him while on the job

Pagosa Springs, CO: A 14-year Colorado Department of Transportation employee died Sunday, several days after he was hit by a passing vehicle while working on a southwest Colorado highway. Nolan Olson, an accomplished 64-year-old equipment operator, was filling potholes on U.S. 160 in Pagosa Springs on Feb. 2 when he was hit and severely injured. He was transported to St. Anthony’s Hospital in Lakewood and died nine days later.

‘He was a good man’ | GDOT worker killed while out treating roads for ice

Atlanta, GA — He had joined the DOT in the 90s and was working long hours before the accident happened. A Georgia Department of Transportation worker who lost his life while working to treat the roads for ice earlier in the week was not just a hard worker, but a loving father and grandfather. Carey Byron Ellerbee, 60, tragically lost his life on Thursday, January 18, after the GDOT truck he was driving was struck by a CSX train on Monday. Kenny Coggins, Ellerbee’s cousin, says that the intersection where Ellerbee lost his life has ‘awful visibility’ and that there are no warning lights or even an arm to stop traffic from crossing the train tracks for an oncoming train.

Arkansas City identifies man killed in Thursday accident

Arkansas City, KS —  Arkansas City officials have identified the employee who died in a workplace accident Thursday afternoon. 53-year old Marc A. Tapia sustained critical injuries on Thursday afternoon at the Public Works central shop. He died later that evening at Wesley Medical Center in Wichita. Tapia had been employed by the City as a public services maintenance worker for nearly 2 1/2 years. He was operating a a street sweeper vehicle when the accident occurred.

Second Massachusetts worker dies while clearing snow

Boston, MA — Massachusetts officials say a second worker died Monday due to snow removal stress while on the job. David Jones, 61, died after clearing snow for the Douglas Public School district, according to the Massachusetts Coalition for Occupational Safety and Health. Jones’ death marked the second snow-related death in less than four days in the Bay State. On Jan. 5, Gordon Van Russell collapsed and died while shoveling snow for the Massachusetts Water Resources Authority in Arlington.

South Effingham employee dies after school mishap

Guyton, GA — Bill Bishop, a popular nine-year school employee, sustained head trauma after falling approximately 12 feet while preparing the South Effingham gym for the Dec. 15 basketball contests against Effingham County. Bishop was rushed to Savannah’s Memorial University Medical Center. He died Sunday morning.

Answer: All of them were public employees and none of them had the right to a safe workplace or come home alive and health at the end of the workday. It’s unlikely that their deaths (or injuries) will be investigated or that anyone will be held accountable, not matter how flagrant the violation of federal or industry safety standards. 

Question 2: What did the employees below have in common?

Modesto employee killed while working on streetlight

Modesto, CA — A city of Modesto employee suffered a fatal injury while working on a streetlight late Monday morning. Tyrone Hairston, 30, was doing maintenance at the intersection of Floyd and Roselle avenues when the accident occurred. Information on what exactly happened is being investigated, a city spokesman said. An administrator on the Modesto/Stanislaus County Neighborhood Watch page on Facebook said the worker “was electrocuted, transported to the hospital, but they could not save him.”

Sterling DCFS worker beaten in September dies in Chicago hospital

CHICAGO, IL  – The Sterling DCFS worker severely beaten Sept. 29 while picking up a child in Milledgeville died this morning at a Chicago hospital, a local union official and friend of the family said. Pamela Sue Knight was 59. Before the surgery, Knight, who no longer could speak, was working with therapists to communicate using eye movements, and was able to answer questions that way. She also was undergoing physical therapy to help her regain movement in her arms and legs. Andrew Sucher, 25, of Rock Falls, was indicted Dec. 7 on charges of attempted first-degree murder, which carries at least 6 to 30 years in prison, aggravated battery causing great bodily harm, and aggravated battery of a state employee, each of which carries 2 to 5 years in prison. He’s accused of kicking Knight in the head so severely that he fractured her skull, causing permanent brain damage that also led to her extensive physical disabilities. Knight had arrived at Sucher’s parents’ home in Milledgeville to take a 2-year-old boy into protective custody when she was attacked.

GoFundMe page set up for Prince William school bus driver killed Monday

Manassas, VA — Richard Lee Proffitt, the Manassas man killed in an accident this week at Prince William County schools’ transportation lot in Bristow, was part of a family of school bus drivers. Proffitt, 62, had been driving a school bus since 2010.  His wife, Laura, and his adult daughter, Caitlin Weaver, are also employed as bus drivers for Prince William County schools, Weaver said this morning.

Employee falls from ladder, dies at Chaska school

Chaska, MN — A buildings and grounds employee working at a Chaska middle school fell off a ladder and died Monday morning, a spokesman for the Eastern Carver County School District confirmed. Daniel Buesgens was attempting to repair a heater in a maintenance room of the district’s recently opened domed athletic center adjacent to Chaska Middle School East. Buesgens fell off an 8-foot ladder in a room that is not in a public area of the building sometime after 8 a.m. and was found by another school employee, said spokesman Brett Johnson.

Man Killed Loading Road Salt at Kentucky Facility Identified

LOUISVILLE, Ky. (AP) — A coroner’s office has identified a Kentucky worker who was killed while loading road salt into a maintenance facility. The Jefferson County coroner’s office tells media outlets that 52-year-old Trent Haines of Louisville died from blunt force injuries last Wednesday. The death has been ruled an accident. Louisville Public Works spokesman Harold Adams said Haines and another worker were loading salt on a dome conveyor at a road maintenance facility when they got caught up in a machine.

65-year-old SC DOT worker dies after slipping, falling on snow and ice

BERKELEY COUNTY, S.C. (WCBD) – The Berkeley County Coroner’s Office has released the identity of the South Carolina Department of Transportation worker who died after slipping and falling on ice and snow on Friday, January 5. According to Coroner Bill Salisbury, the victim is Clyde McCants, 65, of Bonneau. Authorities say the incident happened in the DOT parking area while he was at work. Medics transported McCants to a local hospital where he died on Tuesday, January 9. An investigation conducted by the Berkeley County Coroner’s Office found the death was accidental and he died from head trauma.

Answer:  All of them were public employees, but all of them did have the right to a safe workplace and the right to come home alive at the end of the workday. Their deaths will be investigated, if federal or state standards were violated, the employer will be held accountable.

So what’s the difference. Why do some deserve to live and others to die?

Ohio, Nebraska, Pennsylvania, Colorado, Kansas and Geogria are six of of twenty-four states in the country where public employees are not covered by OSHA. That means that almost 50 years after the Occupational Safety and Health Act was passed, eight million public employees in this country still do not have the right to a safe workplace.  Doesn’t matter if you work with heavy equipment on highways, or in mental health institutions or in prisons or in wastewater treatment plants. Doesn’t matter that public employees in many sectors have higher injury and illness rates that private sector employees doing the same job.

You’re just out of luck. You’re a second class citizen without the basic human right to come home healthy and alive at the end of the work day.  The Occupational Safety and Health Act, passed in 1970, did not cover public employees.  But there were two options for public employee protections. First, if a state chose to run its own program (an OSHA State Plan program), the law requires the state to cover public employees. Twenty-one states and Puerto Rico do that.

The law also gave states the option to let the feds continue to cover private sector employees while the state would adopt an OSHA “Public Employee-only” state plan that would be half funded by federal OSHA. Only 5 states (Connecticut, New Jersey, New York, Illinois and Maine) as well as the Virgin Islands have taken advantage of that opportunity, leaving public employees in 24 states without the right to safe workplace.

The thing that really pisses me off is that despite the fact that the Occupational Safety and Health Act didn’t cover public employees when it was passed in 1970, it did give states options for providing coverage. The twenty-one state plans states that cover private sector employees are required to also cover public employees in their states.  States that don’t have state plans also have the option of adopting a “public employee only” OSHA plan, where the feds would cover the private sector and states would cover the public sector. Funding for the public sector coverage would be matched by federal OSHA.

Only five states have taken advantage of this option over the past 50 years — Connecticut, New York, New Jersey, Illinois and Maine. The other twenty-four states? Public employees remain second class citizens — public servants like Brendan Poling, Salvatore Fidone, Robert Gensimore, Nolan Olson, Carey Byron Ellerbee, Marc A. Tapia, David Jones and Bill Bishop — apparently ready to die for their city or state.

And it’s not because public employment is safer:

Almost 500 government employees died in the workplace in 2016, “with a 9-percent decrease in federal employee fatalities that was more than offset by increases in state and local government fatalities, up 20 percent and 13 percent, respectively,” according to the Bureau of Labor Statistics. Public employees are 47% more likely to be injured on the job than private sector employees, and the injury and illness rate for nurses in state facilities in 13.7 per 100,000 compared with 3.2 for the average private sector worker.

Workplace violence events disproportionately occur among public employees.  752,600 state and local government workers nationwide were injured or made sick in 2015, for a total of nearly 3.7 million reported work-related injuries and illnesses.The incidence rate of injuries caused by workplace violence was more than 675% higher for state government workers (31.2 per 10,000 workers) than the rate for private industry workers (4.0). The incidence rate of violence for local government workers (23.0 per 10,000 workers) was 475% higher than for private industry workers.

Massachusetts Takes A Major Step Forward

But there is a somewhat acceptable third option that some states have taken advantage of. Massachusetts just passed a law providing OSHA coverage to the states public employees.

Massachusetts Coalition For Occupational Safety And Health (MassCOSH) Executive Director Jodi Sugerman-Brozan has called the bill “a historic victory for workers in the state.” After the bill was sent to Baker’s desk on March 1, Sugarman-Brozan said, “Over the coming years, untold number of lives will be saved because OSHA protections will now cover thousands more workers.”

The new law will apply enhanced safety standards for 428,510 public sector workers, according to MassCOSH, a union-backed worker safety advocacy group. Between 2005 and 2016, 52 municipal workers were fatally injured at work in Massachusetts, according to MassCOSH.

The reason I sound a bit hesitant, and call this a “third option” is that this is not an “OSHA approved” public employee program.

Why is that bad? OSHA approved programs are required states to commit to a certain funding level, number of employees and number of inspections every year, and to comply with OSHA’s policies and procedures regarding enforcement of the law. OSHA is required by the law to ensure that the states’ standards and enforcement procedures are “at least as effective” as federal OSHA’s.

H.B. 3952 states that “Public employers shall provide public employees at least the level of protection provided under the federal Occupational Safety and Health Act of 1970 including standards and provisions of the general duty clause” and also establishes an Advisory Board that will include “five members of public employee unions and a representative from a community-based health and safety advocacy organization.”  The Board will “evaluate injury and illness data, recommend training and implementation of safety and health measures, monitor the effectiveness of safety and health programs and determine where additional resources are needed to protect the safety and health of public employees.”

The only mention of an enforcement procedure is that “The attorney general may bring a civil action for declaratory or injunctive relief to enforce this section.”  Now I’m not an attorney, but if these means that the Massachusetts Attorney General needs to file an injunction against each employer found to be in violation of OSHA standards, that could be somewhat cumbersome, given procedures, staff and resources. And there’s nothing in the law itself that mentions resources or budget.   Other states, such as Wisconsin, have similar laws, but no federal oversight over their budget or procedures.  Some run fairly well, and others exist mostly on paper.

Nevertheless, it’s a good thing that the state has taken this step and I’m optimistic that Massachusetts public employee unions and MASSCOSH can hold the state to its promise, and hold out hope for a federally approved program in the future. The state of Maine, for example, had its own, non-federally approved program for many years, before it applied for, and eventually gained initial OSHA approval of its program in 2015.  Other states should follow Massachusetts’ example.

And Finally…

And finally, here is the story of a very lucky employee of the city of Oakwood, Ohio, Charles Rohrback, who was happily rescued after being stuck over 6 feet down in a trench that collapsed on top of him. The news reporter asks at the end: “The big question:  How did this trench collapse?”

But actually, that’s not the “big question.” The answer to that is easy. The trench collapsed because it was too deep and not shored.

The “big question” is why the law in Ohio allows workers to legally risk their lives going down into deep, unprotected trenches that would violate the law if it had been done by a private sector company? And why 24 states and the US Congress continue to let public employees die in conditions that would have been illegal if they had been private sector workers.

Every year for the past 15 years, Democrats in the House and Senate introduce the Protecting American Workers Act that would, among other things, provide coverage for all public employees. The most recent version (S. 2621), introduced March 22 by Sen. Tammy Baldwin (D-WI) in the Senate, and Rep. Joe Courtney (D-CT) in the House (HR. 914).

I don’t hold out much hope of that this legislation will pass anytime in the near future. But until it does, or until every other state follows the example of Massachusetts and Maine, public employees will continue to be treated as second class citizens whose lives are expendable.

This blog was originally published at Confined Space on April 10, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME). 

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.