July 6, 2001
Lewis Karesh, Acting Secretary
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, D.C. 20210
Re: Submission 2000-01
Dear Mr. Karesh:
During our last telephone conversation, you asked the submitters to prepare written recommendations for action at the Ministerial Consultations to be held on Submission 2000-01, and to prioritize our recommendations. This letter includes those recommendations. Many of the action items were previously listed in a letter dated May 21, 2001 from the submitters to your office. That letter requested that a number of actions be taken as soon as possible, without waiting for formal Ministerial Consultations to be convened. Several of those requested actions, such as continuing to press the Mexican government for documents cited in its February 27, 2001 letter to the U.S. NAO and other information requested by the U.S. NAO earlier this year, as well as arranging for fair and transparent re-evaluations of workers compensation for former Autotrim and Custom/Breed Mexicana workers, are hopefully, well underway.
The requests we make below for Ministerial Consultations incorporate many of those made in our May 21st letter, as well as additional requests related to findings by the U.S. NAO and NIOSH in this case. Where possible, we have indicated actions that we believe should be priorities in the sense that they can and should be addressed immediately. However, the other actions requested, while perhaps requiring longer-range discussion and planning, should also be considered priorities because they are reasonable, important, and required by the NAALC and Mexican law. Accordingly, we ask that they all be addressed through Ministerial Consultations. We also ask that the U.S. NAO consult further with NIOSH and the expert witnesses who testified at the public hearing on NAO Submission 2000-01 about appropriate actions to be undertaken with respect to Ministerial Consultations.
1. Perform re-evaluations of former Autotrim and Customtrim/Breed Mexicana workers who were denied workers compensation pay, receive only non-work-related ("general illness") compensation, or allege under-valorization for their injuries and illnesses. (PRIORITY ACTION)
2. Ensure that these evaluations are conducted by medical personnel who are not connected in any way to Autotrim or Custom/Breed Mexicana; establish public, transparent criteria for these evaluations and that the persons evaluated receive clear, detailed, written reasons for decisions on individual cases. Ensure that compensation is awarded according to the framework laid out in Mexican law, namely, at LFT article 492. Article 492 requires that IMSS must consider the following factors in calculating benefits: the workers age, the nature of the disability, the ability of the worker to perform remunerative activities similar to his or her profession or position, and whether the employer has made efforts for the worker to obtain professional re-education. (PRIORITY ACTION)
3. Implement clear protocols for IMSS personnel to deal with workers and former workers who may be suffering illnesses and injuries connected with current or former employment. Subjects which should be addressed in such protocols include: appropriate criteria for determining whether symptoms are work-related; methods for IMSS personnel to calculate proper workers compensation based on LFT art. 492; oral and written notification in plain language of a workers right to appeal IMSS determinations and a clear and complete explanation of the appeals process; intervention with an employer on a workers behalf to facilitate medical appointments and health-related accommodations for the worker; referral for treatment and follow-up to ensure that treatment is effective; and reporting to STPS any illnesses or injuries which may be work-related.
4. Implement incentives for IMSS personnel who comply with these protocols and meaningful sanctions for those who do not.
5. Assess whether current rates and categories of compensation should be changed.
1. Reinspect and monitor conditions at Autotrim and Customtrim/Breed Mexicana according to the framework outlined in #2 below, and the plant-specific recommendations made by NIOSH. Make sure that significant attention is paid to health and safety conditions related to both chemical and ergonomic exposures. Issue corrective orders and assess fines for non-compliance. Ensure that workers and the submitters in NAO Submission 2000-01 receive copies of all inspection reports, corrective orders, and notices of fines. (PRIORITY ACTION)
2. Reorient inspection practices from the current "checklist"and "review of documents" approaches identified by the U.S. NAO and NIOSH, to more hands-on practices aimed at ensuring substantive employer compliance with health and safety laws. Develop mechanisms to monitor inspectors and a system of positive incentives for inspectors who conduct in-depth inspections and enforce the law.
a. Conduct of inspection
Inspections should include at least the following: direct observations of work processes over a period of time to evaluate health and safety conditions; on-site, hands-on assessment of the efficacy of exhaust and ventilation systems (such as the kind of assessments NIOSH began to make); hands-on evaluation of the efficacy of various kinds of PPE actually used (if any) and reasoned recommendations for other PPE that should be used; direct monitoring for chemical exposures to verify results reported by employers; assessment of monitoring and sampling methodologies used by employers or consultants to ensure compliance with Mexican standards (see, e.g. NIOSH letter, pp. 9-10); confidential interviews with a range of employees including members of plant health and safety committees to better understand health and safety conditions and concerns, and to verify whether employer training and prevention programs are actually and effectively implemented. In workplaces such as Autotrim and Customtrim/Breed Mexicana, where chemical and ergonomic exposures are present, such exposures should be a prominent focus of inspections. Inspectors, therefore, must be properly trained in methods to evaluate employer compliance with standards regulating chemical and ergonomic risks.
b. Post-Inspection Actions: Provide employers and workers with written health and safety findings, including findings on the issues indicated above, and clearly identify concrete corrective measures that must be taken and the time-frames in which they must be completed; establish and implement follow-up verification procedures; rigorously assess fines and other penalties against non-compliant employers.
3. Implement regular, effective, hands-on verification procedures to ensure that companies engaged in a "self-monitoring" process comply with occupational health and safety standards, as well as a system of sanctions for those that abuse the process.
4. Initiate discussions concerning the elaboration of specific norms to help implement basic ergonomic protections established by the LFT and RFSH.
5. Analyze why workplace health and safety committees ("comisiones mixtas") are frequently considered ineffective, and institute measures to promote the efficacy of the comisiones mixtas, particularly with regard to training and empowering worker-members.
1. Establish contact with the Texas Department of Health, NIOSH, and other relevant public and private organizations on both sides of the border to learn from past studies and collaborate on future studies of adverse reproductive outcomes among maquiladora workers, including current and former employees of Autotrim and Customtrim/Breed Mexicana. (PRIORITY ACTION)
2. Collaborate with STPS on actions related to inspection, monitoring, training, and prevention, as appropriate. (PRIORITY ACTION)
3. Collaborate with IMSS on actions related to treatment, as appropriate.
Inter-agency (STPS, IMSS, SSA)
1. Create an inter-agency mechanism (a 24 hour hotline for example) for receiving and responding immediately to information about children of maquiladora workers who are born with or die from conditions such as anencephaly, spina bifida, heart, respiratory, or blood problems. Immediate responses from government health personnel should include direct medical interventions and physical examinations aimed at establishing the cause(s) of such conditions. (PRIORITY ACTION)
2. Initiate discussions about effective measures to prevent the kinds of occupational health and safety illnesses and injuries suffered by Autotrim and Customtrim/Breed Mexicana workers, seek input from non-governmental and international experts on preventing occupational health and safety disabilities related to chemical exposures and ergonomic practices, and prepare written recommendations for public discussion and review in Mexico.
3. Initiate discussions about more efficacious medical treatment of such illnesses and injuries, seek input from non-governmental and international experts on such treatments, and prepare written recommendations for public discussion and review in Mexico.
4. Collaborate with other agencies and experts in Mexico and internationally to evaluate the health effects on workers of exposures to mixtures of chemicals, any additional or synergistic effects that can result from exposures to the mixtures.
5. Evaluate workers exposures to toxic components of "water-based" solvents. Water-based solvents are "reduced solvent" materials because they still contain organic solvents, albeit at a lower percentage of the product. Worker exposures to the solvent components of these products still need to be measured and assessed.
6. Work with other relevant governmental agencies to implement effective legislation and regulations forbidding retaliation against individuals who complain of improper conduct by employers, STPS, IMSS, or SSA personnel or violations of Mexicos occupational health and safety laws, and providing for strong sanctions in the event of such retaliation.
Finally, the submitters request that reasonable timetables be adopted for the conduct of Ministerial Consultations, and for implementation of the action items outlined above. We believe that if such actions are not undertaken in a timely fashion that an Evaluation Committee of Experts (ECE) should be convened, and then, if necessary, an arbitral panel should be established. Given U.S. NAO findings in Submission 2000-01, its health and safety observations in cases such as Han Young and Echlin, as well as the growing body of other information regarding the failure of the Mexican government to effectively enforce its own occupational health and safety laws, we believe that continuing non-compliance by the Mexican government would clearly constitute a sustained and recurring pattern of practice of non-enforcement that would support trade sanctions.
On behalf of the submitters