A leadership vacuum, a surprising increase in enforcement activity, and the potential “rise of the drones” all characterize OSHA as it closes the books on 2018 and moves into 2019.
These were some of the observations that representatives of Conn Maciel Carey LLP, a Washington, D.C.-based law firm specializing in occupational health and safety issues, put forth during a recent webinar.
In reviewing key OSHA developments in 2018, Eric Conn, Chair of the firm’s OSHA Workplace Safety Practice Group, said the most notable event of 2018 was a non-event – namely, the lack of an appointment of an Assistant Secretary of Labor for OSHA. “We’re nearly two years into the Trump administration and there is still [no one in the role],” he said. “We have an acting assistant secretary who is the deputy assistant secretary, and who did not require Senate approval, in that job right now running the agency without a lot of help in the front office, with no special assistants, with no chief of staff.”
Conn described how Scott Mugno, vice-president of safety, sustainability and vehicle maintenance at FedEx Ground, had been nominated by Trump in 2017, a nom that was approved by the Senate Committee on Health, Education, Labor and Pensions (HELP) but didn’t get a vote from the full Senate before the end of the congressional term that concluded at the end of 2017.
“So his nomination returned to the White House and Trump nominated him again early in 2018. It was again cleared by Senate HELP Committee early in 2018. For the entirety of the year, that nomination sat waiting for a full vote of the Senate and was never called for a vote.”
In Conn’s view, there is some blame to go around. The Democrats in the Senate have vigorously opposed any nomination to any position made by the Trump White House and have basically not agreed to a closure vote which would avoid the requirement to have 30 hours of Senate floor debate time for every Senate-approved level nomination, unless they got something “really juicy” in exchange, Conn said.
Senate Republicans, meanwhile, are analyzing what nominations are worth the things that they're having to give up to get people confirmed. “And, so far, for whatever reason, the Senate Republicans have not found the head of OSHA to be a high-enough priority to give something away or to commit 30 hours of debate time on the floor of the Senate….There are big questions as to whether the vote will ever happen.”
A big surprise, Conn said later, was the lack of a clampdown on enforcement measures by OSHA, especially given the campaign rhetoric from the Trump team about deregulation to help grow the economy. This was expected to show up in the form of extensive budget cuts at OSHA and a realignment of resources and personnel to focus more on compliance assistance and less on enforcement.
The reality has been anything but.
“We’re two years into the Trump administration and it feels like we’re moving into year 11 of the Obama administration,” Conn commented. “We continue to see the exact same number of, and nature of, local, regional and national emphasis programs, including one new one, the Chemical NEP. And we saw the administration announce a new, very significant enforcement program known as the Site-Specific Targeting Program (SSTP), which had been retired under the Obama administration. It was sort of the grandfather of all emphasis programs for programmed inspections, and that is coming back now.”
Partner Aaron Gelb added that employers should be aware of the different nature of an SSTP. These are “wall-to-wall” inspections in which an employer has no ability to limit the scope.
Other 2018 surprises in this area included:
- an increase in OSHA’s budget (up $5 million for fiscal year 2019)
- no decrease in the number of full-time OSHA employees
- a new record for most $100,000+ penalties issued in a year (218). Trump, Conn pointed out, is averaging 193 per year, while Obama averaged 165.
General Duty Clause Expansion
Looking ahead to 2019, companies can expect to see an expansion of OSHA’s General Duty Cause, Gelb said, particularly in the areas of ergonomics, workplace violence, heat stress and chemical exposures below permissible exposure limits. OSHA has started a process of developing a standard for workplace violence in the healthcare and social services sectors.
“The agency is likely to continue to prioritize this issue in its enforcement efforts through the General Duty Clause,” he said. “If you are an employer that particularly operates in the healthcare or social services field, it’s imperative, if you haven’t already done so, to make efforts to roll out policies or procedures or training to determine and address any issues that you may have in this area.”
Droning On…And Up
Another thing to look out for in 2019 – literally – is a rise in OSHA’s use of drones during inspections, Gelb pointed out. He referenced a May 2018 memo that stated OSHA may use the robotic flying devices during inspections to collect evidence, including from areas that are inaccessible or dangerous for inspectors. While OSHA is mandated to obtain an employer’s consent for the use of drones and personnel must be notified of any aerial inspection prior to launch, Conn said he would not be surprised to see the agency push the limits on the concept of consent, just like they have done in other circumstances.
“We all know that OSHA will climb on the top of a building across the street from your construction site and hang out there for a couple of hours taking pictures and filming your workers not wearing fall protection or covering up holes.”
As long as they’re at any location they’re allowed to be – one of public accommodation – OSHA doesn’t need to give notice to the employer because they're not on their property.
“If they can observe conditions from the top of a hotel, why couldn’t they take a drone up in the sky, not directly over your worksite, and observe things from up there just like they do from the building across the street?”
About the Author: Greg Enright, Content Marketing Manager, Intelex Technologies
Greg Enright is a veteran writer, journalist and editor with more than 20 years of experience covering the Information Technology and Finance sectors. At Intelex, his focus is on Health and Safety issues. He can be reached at firstname.lastname@example.org
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