May 21, 2018

May 21, 2018

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May 18, 2018

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Government Shutdown: What It Means for OSHA

The federal government entered a partial shutdown beginning on January 20, 2018, due to a lack of appropriations. As a result, certain agencies that rely solely on government funding will not be able to provide all services. The Occupational Safety and Health Administration (OSHA), the Occupational Safety and Health Review Commission, and the Department of Labor’s Office of the Solicitor are among these agencies. Until Congress can come to an agreement on funding the federal government, there will be significant impact on these agencies, as summarized below:

OSHA 

OSHA will operate with a skeleton crew at the national, regional, and area offices. Under the Department of Labor’s contingency plan, OSHA’s staffing levels will drop from 1,934 people to 372. OSHA can continue to function on matters “of emergencies involving the safety of human life or protection of property.” Practically, this means that OSHA can continue to respond to serious emergencies, fatalities, imminent dangers, and unabated high gravity violations. OSHA will also continue to issue citations and conduct enforcement activities for serious open cases in which the six-month statute of limitations on issuing a citation will expire. However, normal OSHA inspection activities will not occur.

OSHA will maintain some staff in its offices. The key leadership at the national office is excepted from furlough during the shutdown, as well as two engineers from the Directorate of Construction. OSHA will also keep a chemist and physical scientist at its Salt Lake Technical Center. At the regional offices, all regional administrators and assistant regional administrators will remain. 

The biggest impact on OSHA’s operations will be felt at the area office level. At each of OSHA’s 93 area offices, all of the area directors, one senior safety certified safety and health official (CSHO), one industrial hygiene CSHO, and one administrative support person will continue working. With such depleted numbers of staff at the area offices, OSHA will be unable to carry on its normal day-to-day functions, including most enforcement activity. There will be no compliance officers to perform planned or surprise inspections, and there probably will not be anyone to answer the phones at the area offices.

Employers must continue to report workplace fatalities, amputations, losses of eyes, and inpatient hospitalizations as they normally would if the government was not shut down.  Complaints may still be made to OSHA during the shutdown as well, but there is a lower likelihood that OSHA will immediately investigate the complaint unless there is a high likelihood of death or serious injury.

Not included on the list of excepted employees are OSHA’s whistleblower investigators, all of whom are furloughed during the shutdown. The contingency plan focuses squarely on OSHA’s safety enforcement, rather than its other investigative activities. Therefore, any active whistleblower investigations under OSHA’s jurisdiction will not move forward during the government shutdown.

Occupational Safety and Health Review Commission

The Occupational Safety and Health Review Commission (OSHRC) will lose 52 of its 54 employees during the shutdown. Pleadings and other papers may still be filed with the OSHRC’s electronic filing system, but there will be no action taken. Not even the commissioners are spared under the OSHRC contingency plan; it is “strongly recommended” that they not work. There will only be an employee maintaining the network infrastructure and another employee collecting the mail during the shutdown.

Department of Labor’s Office of the Solicitor

Finally, the Office of the Solicitor’s (SOL) staff will drop from approximately 674 employees to 84 employees. The solicitor of labor, deputy solicitor, deputy solicitors for national operations, deputy solicitor for regional enforcement, one attorney, and some administrative support staff will continue to work at the front office of the SOL. One attorney at the Solicitor’s Occupational Safety and Health Division, which provides appellate litigation support and assists in developing standards, guidance, and interpretations to OSHA, will continue to work. All seven regional offices will have three attorneys on staff, and one attorney may remain in each sub-regional office. Each office will also maintain some support staff.

Key Takeaways

The takeaway from all of this is that OSHA will be operating in suspended animation for the duration of the shutdown. The agency will continue to monitor and respond to emergencies, but any previously planned or random inspection will be rare unless there is imminent danger of serious injury or death. Complaints will still be taken, but most will not be acted upon. Pending inspections will likely remain inactive during the shutdown unless they involve a fatality or catastrophe or involve items high on OSHA’s priority list. Any current contests of citations will probably not be acted upon until after the shutdown, and any whistleblower cases in OSHA’s hands will remain stalled. However, the federal government shutdown does not impact operations in the 26 states and territories with state plans, which will continue normal operations.  

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Associate

Aaron Wilensky focuses his practice on workplace safety and health issues, representing employers facing state and federal OSH investigations.  Aaron also has extensive litigation experience before the United States Department of Labor Administrative Law Judges, representing employers on a wide array of matters before the agency.

Prior to joining the firm, Aaron practiced with a small firm in Newport News, Virginia, representing large industrial employers, including Fortune 500 companies, ports, defense contractors and Non-Appropriated Fund...

202-263-0160
John Martin, Ogletree Deakins Law Firm, Employment Law and Energy Litigation Attorney
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John Martin focuses his practice on occupational safety and health compliance and litigation. He serves as national OSHA counsel for three publicly-traded companies, and has over 15 years of experience in defending employers in federal court and before the Occupational Safety and Health Review Commission (OSHRC). John has defended clients in 18 states and counsels clients on developing safety programs to eliminate and reduce workplace injuries.

202-263-0267