I. ETHICAL ISSUES

The workplace setting presents unique problems for public health because, on the one hand, virtually all its hazards are environmental and can be prevented or controlled, while, on the other hand, it is a setting for social conflict with large economic stakes. Occupational injury and disease are economic phenomena resulting from social decisions about technology and the use of labor in the production of goods and services. The rights of property owners, even in state socialist systems; the economic obligations of managers to owners of enterprises; and the imbalance of power between labor and management present particular problems for occupational health. The position of health and safety professionals in industry is frequently problematic because of tensions between their responsibilities to employers and the ethical codes of their professions. The imperatives of production and profit frequently override other responsibilities for the health and welfare of employees.

Industrial hygiene is the principal profession applying scientific and engineering methods to the protection of workers from toxic chemicals, dust, other air contaminants, and job hazards. The basic industrial-hygiene approach to the work environment places engineering controls at the top of a hierarchy of methods for workers' health protection. This approach is enshrined in the ethical codes of the profession. A typical listing of industrial-hygiene approaches places substitution, process change, and isolation or enclosure at the top of the list. Methods that rely on personal protective equipment are considered less effective and are to be resorted to only when engineering controls are not feasible. The professional emphasis is on management's responsibility to provide a safe work environment rather than on workers' self-protection or adaptation to hazardous conditions.

Equity, or fairness in the distribution of society's material benefits, is not a primary concern in the economic theory or operation of the modern market. Public policy is predicated on the assumption that market mechanisms promote and reward efficiency. Policymakers presume that tax and/or subsidy policy will be used to cushion the effects on individuals or groups damaged in socially unacceptable ways, such as utter impoverishment. The market model minimizes the costs of factors of production, including labor, through entrepreneurial pursuit of profit. The role of government is restricted severely. Since consumer choice rules in the model, firms are guided in the production of goods and services by the willingness of consumers to pay, and resources are directed to consumers' financially expressed desires. Selfish motives are presumed of everybody, yet the model claims efficient results.

Even the strongest advocate of the market economy understands the limits of market efficiency. In the market model, collective consumption of goods and services, such as national defense, malaria control, road building, and the like, may be handled legitimately by the government. Further, where there are monopolistic imperfections in markets, where information is restricted or the mobility of labor and capital is impaired, the government may intervene. In addition, where costs or benefits are not internalized by the firm, air, water, wild animals, and the like are "free goods"; they cannot be considered in entrepreneurial calculations and "inefficient" solutions may result. For instance, a firm may use a process hazardous to human health if it will not bear the cost of worker illness that occurs years later. The existence of externalities is an argument for government intervention to force private parties to internalize these costs.

On what grounds does the government intervene to protect workers' health? Some would argue that imperfect information, imbalances in bargaining power, and other deviations from the perfect market model require that the state intervene on behalf of workers' health and safety. Others would argue that even if markets were working perfectly, the society has an overriding interest in the health of its members, including workers, and that it has a longer time frame than any of the market participants is willing to consider. Thus, market failure to deliver socially desirable ends, because of either imperfections or externalities, justifies state intervention.

Historical Overview

Occupational health has rarely received much attention from the public. Historically, the commitment of the United States to economic advancement through technology has made its society myopic about its toll on workers' health. Through much of U.S. history, workers themselves have been too engaged in the pressing task of making a living for their families to pay much attention to widespread occupational safety and health problems. The labor movement has not been strong enough to force public attention to these issues on a continual basis.

In Europe, the tradition of occupational medicine is much greater. In the sixteenth century, the occupational health problems of miners and foundry and smelter workers were studied by Paracelsus. Bernardino Ramazzini (1633–1714) wrote a classic text on the occupational diseases of workers.

The industrial revolution brought a host of new health and safety problems to European workers. The social reform movements in England, for instance, sought protection for child labor and to restrict the working day to ten hours. Protective labor legislation was passed in 1833 (the Factory Act) and in 1842 (the Mines Act). Both occupational medicine and the trade union movement in Great Britain were launched in the nineteenth century as responses to awful conditions in many workplaces.

In the nineteenth century, the industrial revolution brought to the United States a host of safety problems and some public concern. Massachusetts created the first factory inspection department in 1867 and in subsequent years enacted the first job safety laws in the textile industry. The Knights of Labor, an early trade union, agitated for safety laws in the 1870s and 1880s, and by 1900 minimal legislation had been passed in the most heavily industrialized states.

After 1900, the rising tide of industrial accidents resulted in passage of workers' compensation laws; by 1920 virtually all states had adopted this no-fault insurance program. Previously, workers seeking financial compensation and medical care for industrial accidents had to sue their employers—and their employers had three extremely effective defenses. First, the courts accepted the notion that in a free market, workers assumed the responsibility for established occupational risks. Second, employers were absolved from responsibility for accidents to the extent that a worker's own actions contributed to the mishap. Third, in the eyes of the courts, employers were not financially responsible for injuries caused by fellow employees of the injured worker. In an economy of highly skilled artisans in which the labor process was controlled by the workers themselves, this defensive troika might have been reasonable; in an economy of mass production, high-speed assembly lines, and detailed division of labor, the illusion of worker autonomy fell of its own political weight. No-fault industrial accident insurance was the solution adopted by the states.

Throughout the 1920s, the rise of company paternalism was accompanied by the development of occupational medicine programs. Much attention was paid to preemployment physicals rather than industrial hygiene and accident prevention. Occasional scandals, like cancer in young painters of radium watch dials, reached the public attention, but until the resurgence of the labor movement in the 1930s, Congress did not pass important national legislation. The Walsh-Healey Public Contracts Act of 1936 required federal contractors to comply with health and safety standards, and the Social Security Act of 1935 provided funds for state industrial-hygiene programs. The Bureau of Mines was authorized to inspect mines.

After World War II, occupational health and safety again receded from public attention, as sympathy for the labor movement declined and the nation took a turn to the right. An exception to the general neglect of the field was passage of the Atomic Energy Act of 1954, which included provision for radiation safety standards. Not until the 1960s, when labor regained some political influence, did the issue reemerge. Injury rates rose 29 percent during the 1960s. A major mine disaster in 1968 at Farmington, West Virginia, in which seventy-eight miners were killed, captured public sympathy. In 1969, the Coal Mine Health and Safety Act was passed, and in 1970, the broader Occupational Safety and Health Act became law.

Regulatory Effects

A fundamental aspect of the new law was the unambiguous statement of employer responsibility for occupational health and safety. A new regulatory agency, the Occupational Safety and Health Administration (OSHA), was created in the U.S. Department of Labor. OSHA could require employers to provide safe and healthy workplaces and to promulgate and enforce safety standards. In addition, the OSHA Act established the National Institute for Occupational Safety and Health (NIOSH) as part of the U.S. Public Health Service, to do research and evaluate health hazards in the work environment.

Initially, OSHA adopted a host of so-called consensus standards. In addition to extending the Walsh-Healey regulations for government contractors to the rest of industry, the new agency adopted many of the voluntary guidelines developed by the American National Standards Institute and the American Conference of Government Industrial Hygienists. While this enabled OSHA to enter the field running, with standards to enforce, many of the guidelines were inappropriate as legal standards. Some were contradictory; others were overly detailed or anachronistic. For instance, OSHA adopted a requirement that toilet seats be split in the front, an idea that persisted from the day when people believed syphilis was caught from contaminated toilets. When Eula Bingham became head of OSHA in 1977, one of her earliest and most important tasks was standards simplification: throwing out inappropriate, ineffectual, or silly standards.

The process of developing new standards, however, was slow and cumbersome, involving substantial litigation before any new worker protection was extended. Perhaps the most tortuous path was that of the field sanitation standard for farm workers, which required that farmers provide clean water and toilet facilities for workers in the field. The standard took fourteen years to develop and ultimately was issued only because the courts required OSHA to do so. However, when OSHA, in a heroic effort to update its standards, adopted hundreds of new permissible exposure limits for air contaminants in the late 1980s, this wholesale revision was rejected by the federal courts as failing to meet the procedure required for standard development. In any case, since OSHA's inception, enforcement of standards has left much to be desired, largely because of understaffing.

While the OSHA Act covered most workers in the private sector, the Coal Mine Health and Safety Act established a special regulatory body to deal with the high-risk mining industry. Authority to regulate pesticide exposure of agricultural workers was assigned to the U.S. Environmental Protection Agency (EPA); OSHA bears responsibility for other aspects of farm employment, such as migrant-labor camp conditions and field sanitation.

The most important extensions of worker protection in recent years have been linked to growing public concern with general environmental issues. For instance, amendments to federal environmental laws in 1987 required both OSHA and the EPA to adopt safety and training requirements for a broad range of hazardous-waste workers and emergency personnel dealing with hazardous materials.

Federal government policy during the 1980s was characterized by a neoconservative, antiregulatory stance. Public-health advocates complained of the slow pace of OSHA standards promulgation, the federal ceding of enforcement authority to states, the failure to protect worker-complainants from employer discrimination, and the decimation of NIOSH's budget. The decline of the U.S. trade union movement has further weakened the political impetus for OSHA enforcement activity. In the early 1990s, efforts at legislative reform stressed streamlining OSHA procedures for developing standards and enhancing workers' right to act.

Perhaps the most pressing problems in occupational health arise from the increasing integration of the world economy. In North America, the development of a continental free-trade agreement may threaten the work environment standards of Canada and the United States while bringing a host of new hazards to Mexico. The export of hazardous technologies, products, and waste represents increasing challenges for public health worldwide. On the one hand, our understanding of the nature of health hazards to workers has been improving; on the other hand, the restructuring of the world economy may undercut the political will to control these hazards.

The Rights to Know, to Refuse, to Act

Until the 1980s, workers in the United States did not have a legal right to know the names of hazardous materials to which they were exposed. This seems odd, since even market economists argue that good information is necessary if markets are to reflect working conditions correctly. Nevertheless, it was not until 1980, in the final days of the Carter administration, that OSHA promulgated a "right to know" regulation. The Reagan administration withdrew the proposed rule in 1981, and a political fight for this right ensued on state and local levels. Time and again, coalitions of workers' organizations and community environmental groups won state and local laws mandating the right to know. Finally, OSHA came forth with the Hazard Communication Standard, which, although not as rigorous as some of the local ordinances, nevertheless extended a fundamental right to a wide range of workers across the country. This public-health regulation had to contend with competing property rights of corporations, such as the protection of trade secrets. Proposed legislation that would have required notification of workers discovered in NIOSH studies to be at high risk of occupational disease failed to pass Congress for such economic reasons. In addition, conservatives discovered that providing information involved economic costs to employers and sometimes to government. Companies argued that they should not be required to reveal essential substances or aspects of production processes because business competitors might obtain this information. OSHA was required to balance the protection of worker health with the protection of business's intellectual property rights.

Soon after the Hazard Communication Standard became law, labor advocates argued that the right to know was of little use as long as workers could not use such information to change hazardous working conditions. The OSHA Act made the violation of safety regulations an offense punishable by the government but gave workers only a very limited right to refuse hazardous work, and then only when there was objective evidence (not just fear) of imminent life-threatening danger. Moreover, the OSHA Act focused on the rights of individuals, not on collective worker action for health and safety. Health and safety advocates demanded an expanded right to refuse hazardous work, as well as the mandating of workplace health and safety committees with the right to act. Such committees, which already exist in countries other than the United States (Sweden, for instance), would mark a major departure in the regulatory approach in the United States. Worker empowerment is a substantially different approach from state regulation of the work environment.

Medical Monitoring, Reproductive Hazards, and Hazards to Minority Workers

Even though there is a long history of the use of preemployment examinations by occupational physicians in the United States, medical testing and monitoring remains a controversial area. Key ethical issues include confidentiality of medical records; inappropriate discrimination against minorities, women, and disabled or hypersusceptible employees; and "blaming the victim" vs. reducing exposures. Some OSHA standards require medical monitoring; perhaps one of the most distressing issues is the failure of OSHA and employers to analyze accumulated data systematically.

Because job segregation by gender continues to exist in the United States, women and men sometimes experience different health hazards. Perhaps the most controversial now concern reproduction. Some employers have sought to bar fertile women from jobs in which exposures to hazardous chemicals are within legal limits but may pose risks to a fetus. In some instances, where removal from such work involved serious income and/or opportunity loss, some women have agreed to sterilization in order to meet employer "fetal protection" requirements. Women's organizations and trade unions argue that such policies constitute unfair discrimination against women. The U.S. Supreme Court prohibited such policies in its decision in the case Johnson Controls, Inc.v. UAW in the spring of 1991 (110 S.Ct. 1522, 111S.Ct. 1196).

Similarly, discrimination against and segregation of workers of color in the United States results in their having some of the most hazardous jobs. The situation of illegal immigrants exacerbates the problem, since they are fearful of turning to government for protection. Minority workers frequently have no union representation and are at the mercy of particularly exploitative employers. Migrant farm workers experience some of the most difficult conditions, in part because responsibility for their protection is split between the EPA, which regulates pesticides and related chemicals, and OSHA, which regulates labor camps. Domestic workers are another group largely composed of people of color who have little protection.

Workers' Compensation, Cost–Benefit Analysis, and the Value of Life

When workers are injured or killed on the job in the United States, workers' compensation programs at the state level are supposed to provide quick income support and medical care or a death benefit. These programs may provide a maximum of two-thirds of the average wage in the state, the rationale being that workers must have a financial incentive to return to work. No payment for pain or suffering is allowed. Workers are barred from suing their employers in this "no-fault" insurance scheme. There is no question that many workers suffer severe economic, as well as physical, hardship as a result of industrial injuries. Nevertheless, many employers complain about "cheaters" and fraud in the system, as well as about rising insurance premiums.

There is much debate about whether workers' compensation provides adequate compensation to workers who are injured on the job, and about the efficacy of the system for preventing injury; however, it seems evident that the system does not deal effectively with occupational diseases such as cancer and respiratory diseases. Workers have the burden of demonstrating that their illness is job-related. Diseases of long latency and that may have multiple causes are rarely diagnosed as occupational and workers suffering from them are rarely compensated. Because the workers' compensation system failed to deal with asbestos-related disease, workers' attorneys initiated third-party liability suits in the 1970s and thereafter against asbestos suppliers, who, although they were not direct employers of the sick workers, had failed to warn asbestos product users about the hazards of the material. In this way, the inadequacies of the workers' compensation system have driven the occupational disease problem into the civil courts. Essentially, both the workers' compensation system and the civil courts place dollar values on worker health or life by making employers or suppliers pay monetary compensation for occupational disease or injury. Massachusetts, for instance, publishes a chart indicating the amount of money a worker will receive, under its workers' compensation regulations, for loss of different parts of the body. This system is not a satisfactory way to provide equitable compensation to sick workers because of the lengthy proceedings, the legal expenses, and the high probability that suits will fail.

Workers' compensation programs are not the only situations in which dollar values are placed on workers' health or life. Under the Reagan administration, all regulatory agencies had to calculate the costs and benefits of proposed government regulations. Thus OSHA was forced not only to estimate the costs to industry of compliance with new standards but also was required to place a dollar value on the lives and/or health saved. Economists have devised a variety of ways to estimate the value of a life through surveys of "willingness to pay" to save a life, analyses of apparent risk premiums (higher wages for higher risk jobs) in labor markets, and other techniques for evaluating human capital. Estimates range from as little as $28,000 to several million dollars per life saved. Perhaps the most common approach is to imagine that a worker is a bond or security that will yield a return for some years in the future and that the stream of earnings a worker would receive is a reasonable measure of the worker's productivity. How much such a bond (or worker) would be worth now depends on the size of the earnings stream and on the interest rate that an investor could obtain on alternative bonds or securities. Thus, the present value of human capital can be calculated, and the value of lives saved or lost can be compared with the cost to industry of improvements in the work environment. It is important to note that economists always discount the future: Economists believe that the gain or loss of a dollar ten years from now counts less than a gain or loss of a dollar now. Another approach is to compare the wages of risky jobs with those that are less risky. Then the risk premium is considered to be the amount that workers themselves assign to their health. In a manner similar to the human capital approach, such calculations require us to assume that the markets work well and that wages are adequate measures of the value of labor and reflect the preferences of workers.

Some public-health advocates have argued that there is an inherent antiregulatory bias in such cost–benefit analysis because of the difficulties of placing dollar values on nonquantifiables such as pain, suffering, loss of loved ones, and the like. In addition, cost–benefit analysis attempts to equate economic losses of employers with health and life losses of workers, which critics argue is inappropriate. Another serious difficulty is the problem of discounting the future. What is the appropriate interest rate to use in calculating the present value of a stream of costs or benefits that extends into the distant future? Who should decide the worth of a health benefit twenty years from now? Proponents of such economic approaches claim that there is really little choice in the matter, that public policy requires such calculation. People balance costs and benefits in an ongoing, practical way, even if exact calculations are not made. Certainly, companies must do such balancing. Thus, cost– benefit analysis utilizes market-based evaluation in situations brought about by the failure of the market to treat worker well-being adequately.

Society, by enacting laws and regulations through the political process, has decided to try to override the market. In the United States, as in other nations, worker health and safety appear to be attended to inadequately by employers and managers in charge of production. Even when workers have this information about occupational hazards, they frequently seem to lack the economic power to act to protect themselves. When government intervenes to protect workers, business interests have reasserted their belief in the primacy of economic concerns. Worker health and safety is an important arena in which the values of the market and the values of health and society are in conflict.

charles levenstein (1995)

bibliography revised

SEE ALSO: Environmental Health; Hazardous Wastes and Toxic Substances; Harm; Public Health Law;Injury and Injury Control; and other Occupational Safety and Health subentries

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