OSHA requirements, including contest and abatement periods, are continuing during the shutdown, even if OSHA personnel are not present. State OSHA plans are continuing work, but they get substantial funding from federal OSHA and are beginning to take alter their operations. Many opportunities exist to misstep now and especially when the federal government resumes normal operations.
Under federal OSHA’s Contingency Plan, all but approximately 10 percent of its employees are furloughed. If you call 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 instead may be involved. Similarly, the five or six top managers in each region and a core group at OSHA headquarters in Washington, D.C. working. Below is a typical out-of-office email response:
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.
Citations Continue
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 shutdown. 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).
OSHA will try to clear its backed-up case load after business resumes and the the solicitors will encourage some sort of informal meeting with employers before the solicitors ramp up litigation.
OSHA Litigation
The Occupational Safety and 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 Oct. 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 you need more time than provided for abatement, contact your legal 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 shutdown 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 Oct. 4, and that Michigan OSHA may have to start furloughs as soon as Oct. 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 have 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 or Minnesota.
Stay tuned.
Howard Mavity is a senior partner at Fisher & Phillips and founder and co-chair of the firm’s Catastrophe Management and Workplace Safety Group, which has attorneys staged in many of F & P’s offices. Howard has been involved with almost 500 workplace fatality cases and was selected as one of EHS Today’s "The 50 People Who Most Influenced EHS" in 2013.