Investigations

Kentucky’s worker safety agency is on the right track, according to its latest federal audit, but it needs to continue to improve how it investigates deaths on the job in the wake of significant lapses. 

The audit comes a year after the Occupational Safety and Health Administration found more shortcomings in Kentucky’s agency than any of the other 27 state-run worker safety programs. Kentucky’s Occupational Safety and Health program has seen significant leadership turnover, policy changes and media scrutiny since it received the critical report last summer. 

The new audit was released this month and covered the agency’s work in fiscal year 2018. It determined that Kentucky has either resolved or made progress toward addressing all of the findings from the previous year, and no new serious issues were identified. 

“We had a whole bunch of things to fix in a very short period of time,” said Dwayne Depp, Kentucky’s commissioner for workplace standards. “We are a year into it…and I think we’ve done a really good job of turning this big ship around.”

[Graphic: OSHA findings, then and now]

The agency received high marks on the audit for catching up on required trainings, beginning to accept electronic and non-employee complaints, and improving its documentation in some cases. But the agency is still under scrutiny for its handling of worker fatalities, a problem first revealed in an investigative series by the Kentucky Center for Investigative Reporting, the Ohio Valley ReSource and the Center for Public Integrity

Kentucky failed to properly investigate deaths on the job for at least two years, often not interviewing eyewitnesses, not identifying the cause of the accident and, in some cases, improperly blaming the worker for their own death. 

Conducting thorough fatality investigations remains a work in progress, according to this year’s audit.

That’s a concern for David Michaels, a professor at the George Washington University School of Public Health and a former Assistant Secretary of Labor for Occupational Safety and Health. Michaels reviewed the new audit at KyCIR’s request.

“While the Kentucky plan is making progress, it still has some distance to go before it is up to the level it should be,” Michaels wrote in an email. 

Unlike last year, when the federal review team examined two years worth of fatality investigations, this year’s follow-up report looked at a random sampling of fatality, safety and health inspections, and cases where no inspection took place. The audit offered no specific criticisms of these files and focused mostly on the agency’s plans to improve going forward. 

Depp’s proposed changes address many of federal OSHA’s concerns, but they were not implemented in time to be judged during this audit period, which ran from October 2017 to September 2018.

(Read: “Ky. Worker Safety Leaders Promise Grieving Families They’ll Do Better“)

Shortly after Depp took over last July, he directed the inspectors to interview all eyewitnesses and document those interviews, either by recording or writing detailed narratives. But the agency didn’t buy digital recorders until November. It was still distributing them when the federal review team was on site in January. Kentucky’s inspectors received training in investigations and interviewing in January. 

Similarly, in August 2018, all inspectors were directed to explicitly state the cause of accidents in case reports. In October, a review process was implemented to ensure that was happening. When inspectors were on site in January, a checklist was still being developed. 

Depp told KyCIR he didn’t think the changes rolled out slowly, and that doing things right takes longer than people might like. 

In the state’s written response, Depp said he is confident that, by next year, “OSHA will close out the remaining findings and observations to the standard expected by Congress, the Kentucky General Assembly, and the citizens of the Commonwealth.” 

Though the audit contained no new serious issues, it did cite two areas that Kentucky should work on before they get worse. 

For one, Kentucky did not do as many health or safety inspections as it told federal OSHA it would; and the inspections that it did do found no violations more often than is typical, meaning inspectors were either not identifying hazards or not inspecting high-priority workplaces. 

The audit also flagged that Kentucky is more than two years overdue to meet a requirement that it increase its maximum penalty for worker safety violations. The current maximum penalty in Kentucky is $7,000 for a serious violation, compared to $13,260 federally. 

If the legislature doesn’t vote to increase Kentucky’s penalties before the next audit, the state plan will not meet the basic requirement of being “at least as effective” as federal standards. 

Depp said raising the penalties was a topic of discussion, but the cabinet’s legal team would decide the legislative priorities. 

Contact Eleanor Klibanoff at eklibanoff@kycir.org or (502) 814.6544.

Eleanor Klibanoff covered Rust Belt decline and revival in Pennsylvania. She also worked for NPR and attended the George Washington University.