Document Type

Article

Publication Date

Spring 1-2025

Abstract

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy—the justice—of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. While economists are careful to say that this figure does not “really” represent an attempt to value any particular life, the purpose of even calculating the number is to provide an “aggregated” statistical justification for saying “no” to rules requiring safer work. This seems acceptable until you, or someone you love, is a person at significant risk of being killed. One of the earliest moral and religious challenges, central to constructing modern employment law, was how to deal with workplace harm. Scholars have shown that the perceived inability of tort law to remedy workplace injury and fatality led to a veritable remaking of American law—through establishment of workers’ compensation—that was, in effect, the prelude to the administrative state, and therefore effectively of all employment law.

The moral-ethical dilemma—of work related injury and death—remains a central problem of workplace law. The AFL-CIO estimates that in 2022—the most recent year for which data was available as of the writing of this essay—5,486 employees were killed on the job in the United States; and 120,000 workers died from occupational diseases. During a time of modern, putatively-safe working conditions, these statistics seem almost incredible. At first blush, moral policymaking suggests that the societal reaction to death and injury at work should simply be to stop killing workers. But requiring safer workplaces costs “money.” And the moral question is: how much as a society are we willing to spend to prevent death in the workplace? “Cost-benefit considerations” are inherently moral. One who—because of racial or class positioning in a society, for example—is not likely to be harmed by an activity, may have a great deal of difficulty accurately assessing the moral significance of a risk of harm for others arising from the activity; or in determining whether a certain quantity of risk should be assumed by workers in the broader social interest.

Regulatory “weighing” is the province of economists, not that of workers who are actually exposed to workplace risks of harm and death. Those who argue that strong emotional responses to “fearsome risks” are irrational because of the risks’ putatively low probabilities of leading to harm are typically—perhaps predictably—not exposed to such risks and may suffer from an upper class “anti-safety bias.” It will always be possible to articulate the costs to employers of making workplaces safer, and the benefits to employers of not having to make workplaces safer. Assessment of cost on the worker’s side of the ledger is much more difficult to quantify because it involves the quasi-mystical—and not dollar expressible—question of the worth of life. And the ethical and democratic problem posed is whether the persons asking such questions have sufficient “skin in the game” to be asking the questions or evaluating the answers. The essay reflects on the EU’s “Vision Zero” goal of killing no one in the workplace. It is one thing to admit that it is presently impossible to avoid killing workers on the job. It is another thing to insist that the national goal should be killing no workers at work. Arguing for such insistence, the essay concludes by observing that employers are in fact capable of being much safer than they are.

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