Three possible approaches have been advanced for setting appropriate occupational health standards: the feasibility principle currently employed by OSHA, cost-benefit analysis, and a "soft" cost-benefit analysis that allows for qualitative considerations. This Article rejects all three and advances a fourth possible approach that would focus on counteracting "health theft" by employers--employer actions that expose workers to health risks without compensation. An anti-health theft approach recognizes that Congress's purpose in enacting the Occupational Safety and Health Act was to maximize worker welfare, not to maximize overall total social welfare. This Article makes both the positive claim that counteracting health theft was Congress's intent when it enacted the OSH Act and the normative claim that an anti-health theft approach sets a rational regulatory standard justified on distributional grounds. The Article urges OSHA to adopt the anti-health theft principle as a reasonable interpretation of the ambiguous Section 6(b) (5) of the OSH Act.
Bent, Jason R., "Health Theft" (2016). Connecticut Law Review. 313.