Federal OSHA Assumes Jurisdiction Over Cabin Crews Onboard Aircrafts
In 2013, the Federal Aviation Administration (FAA) issued a final policy statement outlining three areas that OSHA could regulate for cabin crewmembers on aircraft in operation. 78 Fed. Reg. 52848. This policy statement allows OSHA to apply its hearing conservation standard (29 C.F.R. § 1910.95), bloodborne pathogen standard (29 C.F.R. § 1910.1030), and hazard communication standard (29 C.F.R. § 1910.1200) to cabin crewmembers. However, the policy statement does not apply to flightcrew members (i.e., pilots and co-pilots). The policy took effect September 26, 2013 and was enforced in early 2014.
Following the implementation of this policy, OSHA required State Plans, those states that estabish their own state run OSHA programs, “to either elect to amend their State Plans to cover aircraft cabin crewmembers on aircraft in operation, or to decline to exercise such authority, in which case coverage would remain a Federal OSHA responsibility.” According to a Federal Register notice issued today, “all affected State Plans declined. OSHA is hereby amending the State Plans’ coverage in all of the twenty-two (22) OSHA-approved State Plans covering the private sector to reflect the declination of State Plan coverage, and the continuation of Federal OSHA enforcement authority over the enforcement of these three occupational safety and health standards for aircraft cabin crewmembers while they are onboard aircraft in operation in the twenty-two (22) OSHA-approved State Plans that cover the private sector. The State Plan web pages maintained by OSHA have been updated to reflect this notice.”
The three OSHA standards apply only to cabin crewmembers on aircraft in operation. In its 2013 policy statement, the FAA defined “in operation” as “the time [an aircraft] is first boarded by a crewmember, preparatory to a flight, to the time the last crewmember leaves the aircraft after completion of that flight, including stops on the ground during which at least one crewmember remains on the aircraft, even if the engines are shut down.” An aircraft crewmember is any employee who is “assigned to perform dut[ies] in an aircraft cabin when the aircraft is in operation (other than flightcrew members).”
The application of these three standards along with OSHA’s regulations on recordkeeping (§ 1904) and access to employee exposure and medical records regulations (§ 1910.1020) apply to airline employees. Additionally, OSHA’s whistleblower protections (section 11(c) of the OSH Act, 29 U.S.C. § 660(c)) continues to apply to cabin crewmembers, as well.
OSHA remains preempted to enforce its standards on aircrafts in operation other than those specifically stated in the FAA policy statement. Additionally, the FAA stated in its 2013 policy that “the general duty clause will not be applied to the cabin environment…[and] [i]f the agencies later decide to add additional hazards including any hazards covered by the General Duty Clause, they will use a transparent process including notice and comment to adopt such changes.” OSHA cannot use the General Duty Clause to regulate potential hazards, such as cosmic radiation, ergonomics, heat stress, slip and falls or pinch points.
Airline employers should continue to ensure they have the appropriate bloodborne pathogen, hazard communication and hearing conservation programs and relevant training in place for aircabin crewmembers. Federal OSHA will continue with enforcement of these stanards for the airline industry even in states that operate their own State OSHA Plan.