Safety and Health Law in the Obama Administration
If confirmed, both Main and Michaels come to their jobs with well-publicized notions about the federal agencies, their personnel, and the employers they will regulate, all of whom they’ve criticized either impliedly or directly for years. Both favor far more regulation and enforcement than we’ve ever seen in the history of MSHA and OSHA.
Following the massive increases in MSHA civil penalty enforcement that have already taken place over the last two years, the next round of OSHA and MSHA enforcement increases likely will be in criminal prosecutions and OSHA penalties, common demands in Congressional testimony throughout the last decade, and leading provisions of pending legislation.
While the new risks are not yet defined clearly, they are visible on the horizon. Many career MSHA and OSHA personnel have acknowledged that government resources are limited and that the industry and the workforce must be motivated to secure employee safety, without reliance on government. However, initial messages from the new DOL seem to oppose cooperative, voluntary programs with industry. Instead, both nominees likely will embrace another complaint expressed by labor witnesses at Congressional hearings that voluntary programs are not effective and distract from the punitive enforcement programs, which should be the focus of OSHA and MSHA.
I expect to see not only silica, coal dust, and other health exposure standards reduced and mandates expanded, but injury and illness recordkeeping investigated (to respond to reporting “cheating” allegations and suspicions); safety program mandates created and expanded; ergonomics mandates created through the general duty clause and reporting mandates; and for million dollar penalties to become routine. One question for the new DOL is how it will consider and take into account the costs of its actions on the faltering economy? Without such consideration, the political price of the new DOL agenda could be very high and the White House may be forced to intervene.
While both MSHA and OSHA define their roles in the Obama Administration, aggressive action to protect the industry and its personnel from increased enforcement and regulatory risks should be considered. This is a good time to invest in the following:
- Safety equipment and program upgrades;
- Training on how to handle MSHA and OSHA inspections;
- Training on management rights;
- Compliance and recordkeeping audits and corrective actions;
- Government relations and trade associations;
- Initiatives with local and regional MSHA/OSHA offices;
- Challenges to inappropriate enforcement and penalties;
- An increased focus on the technical impossibility of accurately measuring silica and other exposure limits at low regulatory levels;
- An increased focus on the need for improvement in the risk assessment process used to justify new standards;
- Employee discipline for safety rule violations; and
- For non-union sites, understanding the use of MSHA/OSHA in organizing drives.
Before the regulatory machine ramps up, wise operators will reinforce their own efforts to improve worker safety, ensure regulatory compliance, and seek assistance in these areas.
Henry Chajet is a partner at Patton Boggs LLP. He counsels and represents clients in occupational safety and health matters, focusing on crisis management, standard setting, liability prevention, regulatory and congressional proceedings, and design and review of product stewardship programs. Chajet may be reached via phone at 202-457-6511 or via e-mail at email@example.com.
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