Confusion About OSHA During the Shutdown

Under OSHA’s Contingency Plan, all but approximately 10% of its employees are furloughed.  If one calls an Area Office, you’ll encounter an Area Director and perhaps an Assistant Area Director, who will respond to workplace fatalities or complaints of situations threatening a high risk of death or serious injury.  In some cases, senior compliance officers may instead  be involved.  Similarly, the five or six top managers in each Region and a core group in D.C. are working.  Below is a typical automatic email response from OSHA leadership:

Thank you for your email.  Although I am in the office today, due to a lapse in funding I may only perform certain “excepted” activities, those related to a fatality, hospitalizations, or an imminent danger.  If your message does not pertain to an “excepted” activity, I will not be able to respond to it until after funding has been restored.  If your message pertains to an “excepted” activity, I will respond as soon as possible.

If you need to report a fatality, hospitalizations or an imminent danger, please contact OSHA’s toll free number immediately: 1-800-321-OSHA (6742); TTY 1-877-889-5627.

This  skeleton crew must not only respond to workplace fatalities, but they must also somehow issue citations in pending inspections within the six months of commencing an inspection.  Despite the unusual circumstances, as recently as last year, the powerful D.C. Court of Appeals upheld the six-month requirement in AKM v. Secretary of Labor.

OSHA is determined to get citations out within the six month period.  Our clients have received citations this week.  On Monday, one hardworking Area Director scrupulously even carried out a telephonic  “Closing Conference” before mailing out the citations.   Hats off to these guys.

One consequence is that more complex cases may be issued with less attention to detail.  Employers may benefit from this scenario because OSHA may be forced to issue less expansive citations because the Agency does not have the resources to adequately complete the file.  On the other hand, the disruption may cause the issuance of unfounded or flawed citations because Compliance Officers had less time to complete the analysis or because the days away from the office cause Officers to forget facts or make understandable errors. 

If such citations are issued, we will almost certainly need to use Informal Conferences to try to correct factual and legal errors.  Once the government returns, put more time into your preparation for the Informals.  Generally, it’s better to supply the correct facts and legal argument at the Informal than to ignore it, and I fear that there may be a number of occasions where we need to at least try to correct misunderstandings.

Informal Conferences

And what about “Informal Conferences?”  OSHA simply does not have the resources to hold the Informal Conferences for most citations recently issued or issued during the shutdown.  Informal Conferences in the federal-OSHA system must occur within 15 working days of receipt, and the employer must accept or “contest” the citation at the end of the period.  Employers who miss the 15 day period almost never justify missing this deadline.  Various Area Directors have emphasized to employers that they should file their contests regardless of the shut-down. 

We suggest that the employer include a statement that “the employer was unable to schedule an Informal Conference due to the shut-down, but that the employer remains interested in meeting with OSHA at the direction of OSHA’s counsel (the Solicitors Office).  One assumes that OSHA will try to clear its backed up case load after business resumes and that the Solicitors will encourage some sort of informal meeting with employers before the Solicitors ramp up litigation.

OSHA Litigation

The Occupational Safety & Health Review Commission (OSHRC) is shut down and almost all of the Solicitors for OSHA have been sent home.  We cannot guarantee that the OSHRC and its Judges will provide extensions for actions due in cases before the Commission, but we assume that the OSHRC will do so.  The Federal Solicitors are by and large solid professionals, and we expect that we’ll be scrambling to work with them on discovery and motion issues.  We’re treating OSHRC deadlines as still active.  Likewise, moving ahead with discovery responses and other actions may contribute to being able to restart disrupted cases.  This stasis is frustrating to both the Solicitors and employers, but with the Solicitors forbidden to work, there’s not much that we can do about settlement negotiations or moving cases along.  At least until October 15, Federal Courts are continuing work, but we don’t know if any OSHA  appeal cases will move forward.

 Abatement Efforts

Employers should continue abatement efforts for both legal and practical reasons.  Hazards do not disappear during a shut down, unless of course your workplace shuts down due to the effects of the government impasse.  Moreover, OSHA is unlikely to be able to respond to a petition to modify abatement.  If one needs more time than provided for abatement, contact your counsel.

State OSHA Plans

Twenty seven states run state OSHA-plans with Federal OSHA financial support or plans covering public employees.  Outwardly, those agencies are conducting business as usual, but what happens if the shut down drags on?  How long can the State Plans continue normal operations without Federal funding?   The answer seems  to depend upon how well the state has been financing its share of the plan’s operation.

An excellent BNA article this week and various inquiries have provided the following information.  The current chair of the Occupational Health & Safety Plan Association stated that Iowa OSHA began some furloughs on October 4, and that Michigan OSHA may have to start furloughs as soon as October 14.  New Mexico has limited programmed inspections due to travel restrictions but is otherwise normally functioning.  Nevada OSHA said that it is good for 90 to 120 days.  So far, it’s business as usual for Tennessee, Kentucky, California, Washington State, Indiana, Maryland, North Carolina, Arizona, and Oregon.  We have heard that Tennessee may to make cuts in another week or so, and Kentucky perhaps a week or two later.  We haven’t heard any reports from plans in Virginia, South Carolina, Minnesota,

 Stay tuned.

Howard

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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One Response to Confusion About OSHA During the Shutdown

  1. Pingback: OSHA and the Impact of the Government Shutdown » NAHETS

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