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Get ready for a more aggressive OSHA

By James A. Lastowka, McDermott, Will & Emery, LLP

James LastowkaThe Obama administration’s “new OSHA” has a simple message for U.S. industry. This message has been delivered loudly and clearly by both Secretary of Labor Hilda Solis and Acting Assistant Secretary for Occupational Safety and Health Jordan Barab. Their message: “There is a new Sheriff in town.” And we all know what sheriffs do. They aggressively enforce the law. That is exactly what the new Occupational Safety and Health Administration (OSHA) intends to do.

President Barack Obama was elected with the strong backing of organized labor. In return, the new president of the AFL-CIO, Richard Trumka, and other union officials have emphatically promised that organized labor will hold the Obama administration’s feet to the fire to make sure that the pro-labor commitments made during his campaign are delivered. One of these commitments is a quick reversal of what the Obama campaign and its union supporters claimed was eight years of the Bush administration OSHA “selling out to big business” to the detriment of worker safety and health, allegedly accomplished through an agenda of lax enforcement, cozy partnerships and cessation of any meaningful standards-setting activities. Through its OSHA appointments, the Obama administration has established that it will, in fact, be delivering on its commitments to labor.

The New OSHA’s Leadership Team
The tone of an agency is set at the top. The leadership team appointed to head the new OSHA leaves no doubt about what the tone of the new OSHA will be.

The new Secretary of Labor, Hilda Solis, is a former member of Congress from California. Before being elected to Congress, Solis served in the California Assembly, became the first Latina elected to the California Senate and worked in the Carter administration’s Office of Hispanic Affairs. Her official biography explains that her priorities in Congress included “expanding access to health care, protecting the environment, and improving the lives of working families,” and that she was the recipient of a John F. Kennedy Profile in Courage Award for her “pioneering work on environmental justice issues.”

In a June 2009 speech at the American Society of Safety Engineers’ annual conference, Solis said: “There is a new Sheriff in town…. Make no mistake about it, the Department of Labor is back in the enforcement business. We are serious, very serious.” To demonstrate this, one of her first steps was to order an enforcement blitz by OSHA SWAT teams at construction sites across Texas to combat what she said was the state’s “dubious distinction of having the most worker fatalities in the nation.” Solis also announced that the U.S. Department of Labor’s budget request includes funding for up to 130 new inspector positions.

The Deputy Assistant Secretary and current acting head of OSHA is Jordan Barab. It was reported that “Organized labor was nothing short of giddy when President Barack Obama decided to make Jordan Barab the temporary head, and permanent No. 2 official” at OSHA. Barab previously served as special assistant to the head of OSHA in the Clinton administration and in that position helped spearhead the promulgation of the controversial ergonomics workplace safety and health standard that was issued by OSHA but subsequently repealed by Congress. Prior to his appointment as Deputy Assistant Secretary of OSHA, Barab was senior labor policy advisor for health and safety for the House Education and Labor Committee, and before that he worked for the U.S. Chemical Safety and Hazard Investigation Board. Barab was a health and safety specialist for the AFL-CIO from 2001 to 2002, and directed the safety and health program for the American Federation of State, County and Municipal Employees (AFSCME) from 1982 to 1998. In a recent speech at an AFSCME convention, he remarked that “I always tell people that I still bleed AFSCME green.” In another speech, he told the attendees: “You are not alone. We have your back and your fight is our fight…. There’s a new sheriff in town.”

On July 28, 2009, President Obama nominated David Michaels, PhD, MPH, to be the head of OSHA. This nomination is subject to Senate confirmation. Michaels, an epidemiologist, currently is a research professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services. Michaels is the author of the book Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health. In the Clinton administration, Michaels served as Assistant Secretary of Energy for Environment, Safety and Health. In that position, he was the chief architect of an initiative to compensate nuclear weapons workers for occupational illnesses resulting from exposure to radiation, beryllium and other hazards. Key goals of Michaels would be to jump-start OSHA’s standards-setting process, with a particular focus on chemical exposure issues and ergonomics. In an editorial, the Washington Times characterized Michaels as a “virulently anti-business epidemiologist.” Given the new OSHA’s agenda and the OSHA-head nominee’s past pointed criticisms of industry, the confirmation hearings will provide early proof of the heated battles that will be fought on the OSHA front during the Obama administration.

Deborah Berkowitz has been named chief of staff at OSHA. Berkowitz is the former health and safety director at the United Food and Commercial Workers’ union, and she was very active for the union during OSHA’s first round of ergonomics cases in the meatpacking industry in the 1980s and during the Clinton administration’s ergonomics rulemaking.

Top Priorities for the New OSHA
The top priority of the New OSHA can be summarized in two words: strong enforcement. This will be accomplished in several ways:

  • Implementing a “Severe Violators Inspection Program” that focuses on large employers whose histories of OSHA violations demonstrate, in OSHA’s view, that they do not take their compliance obligations seriously and need to be targeted for very aggressive enforcement in order to get the message
  • Working more closely with the U.S. Department of Justice to increase the number of criminal prosecutions for workplace fatalities, injuries and illnesses
  • Supporting legislative OSHA reform efforts that include substantial increases in penalties, both criminal and civil
  • Increasing the number of inspectors; the number of inspections conducted; the number of citations issued, particularly for serious, repeat and willful violations; and the amount of penalties proposed for violations—a more aggressive enforcement approach signaled by OSHA’s June 22, 2009, proposal of $1,145, 200 in penalties against a company for combustible dust and other alleged safety violations
  • Focusing on specific enforcement issues through National Emphasis Programs (NEPs), including continuing the NEPs for process safety management compliance (PSM) at refineries and for combustible dust hazards, rolling out the NEP for PSM compliance at chemical facilities, and establishing an NEP for auditing compliance with OSHA’s injury and illness recordkeeping requirements, which the new OSHA believes is a seriously flawed system as a result of what it believes is widespread “cheating”
  • Decreasing what it believes was the Bush administration’s over-reliance on partnerships, alliances and company participation in Voluntary Protection Programs

What Companies Must Do to Prepare for the New OSHA
Given that the current direction of OSHA is so clear, companies have all the warning needed as well as an opportunity to ensure that their OSHA-compliance houses are in order before OSHA arrives at their doorsteps. Here is what must be done:

  • Establish a Catastrophe Response and Management Plan. Workplace catastrophes present extremely large risks on a number of fronts. The way in which you manage those risks following workplace catastrophes in both the short and long terms are key to minimizing potentially substantial liabilities. You need a comprehensive, well-thought-out plan to manage the situation, including managing the multi-agency investigations that will follow, that can be triggered and effectively implemented on a moment’s notice.
  • Verify through compliance reviews that your OSHA-required safety and health programs are in place. Ensure that written programs, which may look good on paper and in binders, are in fact effectively implemented in your workplaces. Ensure that your OSHA-required injury and illness recordkeeping files are accurate and up-to-date. The new OSHA will be focused on looking behind the scenes and talking to employees to get the “real story” about their employers’ safety and health efforts.
  • Focus on your “key risks,” meaning the specific risks at your workplace that are actually faced by your employees on a frequent basis and which present the most exposure to a risk of serious injuries or death. Focusing on your actual key risks in a consistent, demonstrable manner will go a long way towards minimizing your overall risk of a significant OSHA enforcement action.
  • Ensure that your safety and health program demonstrates a “top down” as well as a “bottom up” commitment to worker safety and health. Without the demonstrated interest and commitment of your company executives as well as your front-line workers, the results of your safety and health efforts will not be maximized.
  • Have a plan in place to manage OSHA inspections in a careful, thought-out manner to minimize the possibility that a significant enforcement action will result, as well as a plan that ensures that every OSHA citation that is issued is properly analyzed to determine not only its validity, but also its potential effect on your company’s overall OSHA violation history and its other impacts to the company. Because of the potential negative impacts of OSHA citations, decisions as to whether to appeal or accept citations will be increasingly important.

Taking the time now to determine how your company measures up in these key areas will put you in a much better position to effectively anticipate, minimize and deal with the aggressive enforcement promised by the new OSHA.

James A. Lastowka is a partner in the law firm of McDermott Will & Emery LLP based in the Washington, D.C. office and is a member of the Firm’s OSHA, MSHA & Catastrophe Response Group. Jim has practiced exclusively in the field of occupational safety and health for nearly 30 years. He is a recognized authority on OSHA and MSHA law whose practice includes providing compliance counseling, conducting safety and health audits and due diligence reviews, handling the full range of OSHA and MSHA litigation. Mr. Lastowka can be reached at +1 202 756 8087 or jlastowka@mwe.com.

 

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