Public Sector Employees, Texas, and Confined Space - Part 3

I contact Governor Perry's office and stumped them with my question "Is Governor Bush's 1995 Executive Order still in effect?"

They would get back with me...and they did.  Apparently it was put into Texas Law in the .  I was then told to contact    and they would be able to answer my question more specifically.  I missed his call back, so here I am without a definitive answer.

However, armed with this new information, or at least the path to move forward on. I went back to Google and searched for "Texas state employees compliance with OSHA."

This brought me to the webpage of the Texas Workforce Commission (TWC).  Why my original searches did not show this page, well, is frustrating.  So based on what Governor Perry's office told me, public employee health and safety regulations, at least for us Texas State employees, is under risk, which is under workman's comp.

Source

You can see that I was getting close with my poking around as I had already looked at hazcom.  So what does that tiny print say?

• The state agency in Texas with the greatest authority in the area of workplace safety is the Texas Department of Insurance, the Division of Workers' Compensation of which has enforcement responsibility for the Texas Workers' Compensation Act
• The main workplace safety resource information for Texas is on the TDI Web site. 
• The Workers' Compensation Division's OSHCON Department provides workplace safety and health consultations to Texas employers, including free OSHA compliance assistance.

So what does the Texas Department of Insurance, the Division of Workers' Compensation Chapter 401 of the Texas Labor Code say about having to comply with health and safety regulations or policy for public sector employees?

Let's look at definitions first.  If you recall, the OSHA law excludes public sector employees because state and local entities are not defined as an "employer."  Here is what Texas Chapter 401 says:

"Employer" means, unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers' compensation insurance coverage.  The term includes a governmental entity that self-insures, either individually or collectively.

Okay...now we are getting somewhere.  Since I am not a lawyer, I can't say definitively who is, or who is not covered by that.  What I am going to do is look at it with the same eyes that a public works manager - who is not a lawyer - would use. When I read "The term includes a governmental entity that self-insures, either individually or collectively," I understand that to mean both state and local public entities that employee folks just like me.

I am going to ask if my understanding is correct when I call the TWC guy back this week.  That guy, I have been told, is a lawyer and he works for the TWC.

Getting close...so close...


Next Post: Public Sector Employees, Texas, and Confined Space - Part 4

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Public Sector Employees, Texas, and Confined Space - Part 2

Governor Rick Perry wants me dead!

Well at least that might be the conclusion from reading this guy's blog on the subject of OSHA and public sector employees:

Okay, so maybe Rick Perry does, but George Bush, the guy that was governor before Perry and the second Bush to become President, cared about my health and safety.

Source

I am going to check this week to see if that's still in effect.  Apparently, way back in 1995, Governor George Bush decided that public sector state employees in Texas warrant health and safety protection consideration.  That's his signature and it has the official seal.  Texas does not want me dead!

So what do I know about OSHA-like protection for public sector employees?  I am looking at this from how we do it in Texas, a state without a formal OSHA approved plan.  Here is what Texas Governor George Bush said in his Executive Order:

WHEREAS, state government should lead by example by complying with all applicable federal, and state laws, standards, rules, regulations and guidelines;

What that tells me, or at least how I read it, is that we don't need no stinkin' special rules for protecting state workers in Texas.  We are supposed to live by the rules currently in place.

So, in Texas, me, as a state employee, is protected.  My employer, the Texas A&M University System, is supposed to have a "comprehensive written risk management/safety programs" according to the Executive Order.

Do we have one for entry into a confined space?

The way I write this blog is to ask a question and then in real time look for the answer.  I do this (the vast majority of the time) without knowledge of what the answer will be, and have decided that, good, bad, or indifferent, I will report what I find.  I don't know if we have one, I suspect we do, but I need to check.

And...

Source

Pew!  That would be embarrassing if we did not.  So for me, a state worker, working for the Texas A&M University System, my employer has developed a safety plan for me if I work in a confined space.  That manual tells me this:

It is the policy of Texas A&M University (TAMU) that any individual entering into a confined space on TAMU property will do so in accordance with the procedures outlined in the Confined Space Program and 29CFR1910.146.

So, without OSHA oversight, without specific state regulations for confined space entry in place, Texas has told my employer you need to protect your workers.  And my employer has said, well heck, let's just comply with OSHA, because, you know, they already have confined space requirements, let's not reinvent the wheel!

I started with this question:

Question:  Do public sector employees need to comply with any safety regulations regarding entry into a confined space?

I can answer it now.

Answer:  If by public sector employee you mean a Texas State employee, then yes, we have safety regulations regarding entry into a confined space.

But what about public sector employees who are not state employees but work for a local municipality?

Hmmm...good question.


Public Sector Employees, Texas, and Confined Space - Part 3

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Public Sector Employees, Texas, and Confined Space - Part 1

Question:  Do public sector employees need to comply with any safety regulations regarding entry into a confined space?

Answer: I don't know.

Really?  That's my answer to that question?  "I don't know."

Yeah, that's right.  At this point in time I don't know.  So I am going to find out.

Here is what I understand at this point in my quest:

The protections of the Act are extended to all private sector workers. However, the specific requirements of the Act have created a patchwork of coverage for workers in the public sector. Some of these workers are covered by the Act while others are not.

That's from a document by OSHA called " Evaluating the Status of Occupational Safety and Health
Coverage of State and Local Government Workers in Federal OSHA States."  Texas, the state I work in, is a Federal OSHA state.  That means that we do not have our own OSHA regulations which are known as a "state approved plan." According to OSHA:

There are currently 22 States and jurisdictions operating complete State plans (covering both the private sector and State and local government employees) and 5 - Connecticut, Illinois, New Jersey, New York and the Virgin Islands - which cover public employees only. (Eight other States were approved at one time but subsequently withdrew their programs).

So if only 27 states have rules covering public sector employees, where does that leave guys like me, a Texas State employee?  Why am a I not covered under the same employee safety rules when I do similar jobs, like entering a confined space, trenching and shoring, wearing a respirator, and other hazardous operations, just like my counterparts in the private sector?

Here is what OSHA says about that:

Section 2(b) of the Act states that it is the purpose and policy of Congress “. . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.”

Well me and my fellow state employees are "working man and woman" so what part of the word "every" do we not meet?  Here is what OSHA says about that:

...because the definition of an employer in Section 3 of the Act specifically excludes: “. . . the United States or any State or political subdivision of a State . . .,” their workers are not provided the Act’s protections.

Really?  Thanks 1970's congress!  OSHA says

As a result, while all private sector workers are protected under provisions of the Act, all public sector workers are not. Only Section 18(b) State Plan states must provide OSHA protections for public sector workers.

Because Texas is not one of the 27 states with a State Plan I guess we are SOL on having to meet any type of confined space safety requirements.  Pop the top and enter!

No...that can't be right...can it?  Here is what I found out from that OSHA document:

Two states, Alabama and Delaware, had no recognizable occupational safety and health programs for public sector workers at either the state or local government level. These states had no OSH legislation enacted nor Governors’ Executive orders establishing a program comparable to the standards, or providing the protections equivalent to the provisions of Section 18(b) of the OSH Act.

But then I see this:

I'm confused, perplexed, and, well...

You mean to tell me that me and my 936,999 fellow public sector employees are provided no safety and health protection?  That can't be right...can it?


Next post: Part 2

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