Experts say state agency's deficiencies could jeopardize worker safety

Indiana’s workplace safety agency has too few inspectors, is slow to investigate complaints and fails to recognize deadly hazards, according to an annual federal monitoring report.

Experts say those problems could put the safety of Hoosier workers in jeopardy. They suggest many of the problems are indicative of a state that prioritizes a business-friendly environment and sees regulation as a potential impediment to economic growth.

Gov. Mike Pence disagreed with that assessment. He said through a spokesman that his administration “takes workplace safety very seriously.”

"Any accusations of partisan mismanagement are cynical and unfounded,” said Matt Lloyd, a spokesman for the governor. “Indiana’s workplace injury rate is the second lowest on record, and the administration is always working for improvement as it continues to build one of the best business environments in the country."

The issues highlighted in the report are nothing new for the Indiana Occupational Safety and Health Administration, which has struggled with inadequate staffing for years and has one of the lowest funding levels in the nation.

The problems got so bad that federal authorities last year launched an investigation of IOSHA. They found the agency mishandled complaints, inhibited investigations, discouraged whistleblowers and tried to boost its inspection numbers with prohibited quotas.

Lloyd called the new federal monitoring report an "outdated snapshot" and said the state has implemented 20 of the 22 recommendations from the federal investigation.

Still, the new report suggests the state is making little progress in addressing past issues. In fact, some problems have grown worse.

Among the findings:

Not enough inspectors: The state has 38. Federal OSHA says it should have 70. “The effect of this personnel deficiency is evident in the number of inspections the State Plan completed,” the report said.

Few inspections: IOSHA had a goal of 2,019 inspections in fiscal year 2014. It completed only 1,135. That’s the fewest in at least five years and perhaps since the program was approved in the 1980s.

Slow response: IOSHA took  close to 72 days on average to investigate complaints in fiscal year 2014. That’s nearly twice as long as the year before and 14 times longer than the national standard of five days. For imminent danger complaints — those involving a threat of death or serious physical harm — IOSHA is supposed to respond within one day. It failed to do so 60 percent of the time.

Failure to recognize hazards: Federal monitors found apparent violations were not cited in 11 of 88 case files they reviewed. “Photos showed evidence of workers exposed to hazards, such as amputations due to inadequate guarding of machinery, electrical shock and falls that were not cited,” the report said. “IOSHA should ensure that Compliance Officers are not penalized for taking additional time to conduct complex inspections and appropriately identify and document all observed hazards during inspections.”

Too few citations: IOSHA’s safety inspections resulted in citations only 33 percent of the time. The national average is more than 70 percent.

The two men in charge of IOSHA — Indiana Labor Commissioner Rick Ruble and Deputy Commissioner for IOSHA Tim Maley — declined interview requests for this story.

Their spokeswoman, Amanda Stanley, said in an email that the agency “is continually working to improve its performance for the benefit of Hoosier workers.”

But experts who reviewed the report at The Indianapolis Star’s request say the findings paint a picture of an agency failing to adequately protect workers and mighthelp explain why Indiana’s workplace fatality rate is among the 15 worst in the nation.

“Just looking at it from the outside, it seems like they’ve ignored a lot of the recommendations,” said Frank Rosenthal, an occupational and environmental health professor at Purdue University. “I think the report raises the question of whether Indiana OSHA is providing the essential services of occupational health and safety that are expected.”

Without major improvements, he worries that workers will increasingly find themselves in danger.

"It‘s going on year after year. How many people are going to get hurt in the meantime?" he said. "We know that OSHA does have some effect in reducing injuries in the workplace, so it’s only logical that if you have an OSHA program that is running at half speed, it is going to be less effective in preventing those injuries. It’s not rocket science."

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Many of the problems could stem from a lack of funding. Indiana’s workplace safety funding per worker is the second lowest among the 21 states that run their own OSHA programs, according to an analysis by The Star. Federal OSHA inspects workplaces in most other states.

IOSHA’s Stanley defended the state’s current staffing levels, noting the federal benchmark of 70 inspectors has not been revised since the 1980s. She said workplace injuries and illnesses are at near-record lows and that Indiana’s fatality rate in 2014 was the fourth lowest on record.

“In general, worker fatalities have continued to decrease over the past 22 years from a high of 195 in 1994 to a record low of 115 in 2012,” she said. “These statistics demonstrate that IOSHA safety professionals and Indiana employers are continuing to move the needle in the right direction. Workplace and employee safety continues to be a high priority.”

Still, Indiana’s fatality rate is the 14th worst in the nation, according to 2013 federal data. Indiana's rate was 4.4 deaths per 100,000 workers, compared with a national average of 3.3. Stanley said Indiana's rate improved to 4.0 in 2014. The rates for other states have not yet been published.

The deaths in Indiana included an explosion at the GM plant in Marion that killed one contractor and injured eight others. IOSHA found that Quaker Chemical had not properly trained its employees about the danger of the chemicals they work with. The company paid an $8,190 penalty.

See Indiana's biggest workplace safety penalties

That amount was relatively high for an IOSHA penalty. A review of the agency's penalties in fatality cases during 2014 found that they averaged $3,134 — the 11th-lowest amount in the country and well below the national average of $10,640.

That's because IOSHA often negotiates away penalties in exchange for compliance by the employer. Last year, for example, an employee of Wood Electric in Union City died from a fall while spot-checking an electrical motor on a water tower 35 feet off the ground.

Employers are supposed to provide fall protection such as harnesses, netting or railings at such heights. But IOSHA found the company elected not to have workers wear fall protection equipment.

IOSHA initially issued a penalty of $15,000 but reduced it to just $2,500 after the company agreed to a free consultation with the state regarding its fall protection program.

“With Indiana ranked 36th for fatality rate and being 9 percent higher than the national rate, the state is failing to protect workers as much as it could,” said John Newquist, a former assistant regional administrator with federal OSHA who oversaw state plans.

He said many issues in the federal monitoring report are emblematic of an emphasis on being business-friendly.

"I think you can make that case with the low citations, low penalty and high in-compliance rates," he said. "This shows the managers can't see the issues because they are looking at statistics."

Those are frequent complaints from David Williams, Midwest field operations coordinator for the Laborers' International Union of North America.

IOSHA’s previous leader, Jeff Carter, frequently cited construction companies based on photographs of unsafe practices provided by the laborers' union, Williams said.

But there's been a shift in enforcement since Maley, a former safety manager for Eli Lilly and Co., took over at IOSHA. He was appointed at the end of Gov. Mitch Daniels' term and kept on by Pence. Under Maley's leadership, the union's safety complaints have been treated as a nuisance, Williams said.

In one case, Maley dismissed a union complaint because the company said it was a “union vs. nonunion issue,” Williams said.

In another case, an inspector sent a letter to an excavation company informing it of the complaint and asking it to provide evidence that any problems had been fixed. But the letter also told the company that IOSHA is “not planning to conduct an onsite inspection at this time.”

Williams said such responses encourage companies to continue poor safety practices.

“Contractors know the following,” Williams said. “IOSHA will no longer issue citations from our photos, IOSHA is seriously understaffed, and IOSHA will only issue citations from inspectors actually witnessing violations. Knowing those three things allows them to play the odds.”

Rosenthal, the Purdue University professor, said it bothers him that IOSHA is informing companies they won't be inspected.

"I resent this as a taxpayer," he said. "A public agency I’m paying to enforce worker safety is giving employers a heads-up they are not going to be inspected."

Stanley said the agency considers the union’s complaints to be “nonformal” unless they are filed by an employee of the company.

“When nonformal complaints are received, Indiana OSHA will contact the company and request information related to the complaint. If the company cannot satisfy this request, Indiana OSHA reserves the right to formally investigate and assign an officer to visit the site,” she said.

She said IOSHA plans to meet its inspection goals for 2015. But the agency recently lowered those goals.

“The present Indiana OSHA management team re-evaluated the inspection goal and established a goal of conducting 1,200 inspections per year,” she said.

That’s fewer inspections than were performed in any year prior to 2014. She said the agency arrived at the number after taking into account several factors, including staffing levels, the needs of the Indiana economy and the needs of each industry.

“Ultimately,” she said, “safe workplace environments contribute to a business-friendly state.”

Call Star reporter Tony Cook at (317) 444-6081. Follow him on Twitter: @indystartony.