OSHA Law Update A Hazard Communication

OSHA SHUTDOWN – Government Shutdown Strips OSHA to a Skeleton Crew

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By Casey M. Cosentino and Eric J. Conn

The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations.  As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.

On September 10, 2013, with the government shutdown looming, the Assistant Secretary of Labor for OSHA, David Michaels, issued a memorandum outlining OSHA’s  “Contingency Plan for Suspension of Agency Operations after September 30, 2013.”  According to the Contingency Plan, OSHA is only authorized to staff enough personnel to respond to the most significant workplace emergencies, including workplace fatalities and catastrophes as well as employee complaints related to hazards that present a high risk of death or serious physical harm.

OSHA’s Shutdown Contingency Plan was approved and included with overall shutdown plan for the Department of Labor, outlined in a September 27, 2013 Shutdown Memorandum issued by Patricia Smith, the Solcitor of Labor.  In the wake of the shutdown, of the Department of Labor’s overall workforce of 16,304 employees, only 2,954 will stay on the job.  For OSHA, that includes keeping active only 230 of its 2,235 personnel.   At OSHA’s National Office, that includes:

  • Six members of the Executive Staff;
  • Four Senior Compliance Staff;
  • Two Engineers from the Office of Construction and Engineering;
  • Four Information Technology staff;
  • The Agency Emergency Manager; and
  • One Support Staff from the Executive and Senior Compliance Staff.

At each of OSHA’s ten Regional Offices, OSHA has maintained only the following personal:

  • Regional Administrator;
  • Assistant Regional Administrator (“ARA”) for Administration and Management;
  • ARA for Enforcement;
  • ARA for Technical Support; and
  • Administrative support.

Finally, only two compliance officers (one safety and one health) at each of OSHA’s 92 Area Offices around the country are working, and only two senior chemists and two industrial hygienists remain at OSHA’s Salt Lake City Technical Center.

Moreover, the shutdown has forced furloughs in other government areas that focus on workplace safety and health.  For instance, the Occupational Safety and Health Review Commission (OSHRC), which is the independent body of judges who hear and rule on challenges to OSHA citations, has retained only two employees to maintain its computer network and to receive mail.  Here is OSHRC’s shutdown contingency plan.  None of the Department of Labor’s 122 ALJs (including the 11 OSHRC ALJs) will be active during the shutdown.  Likewise, most of the attorneys in the Department of Labor’s Office of the Solicitor (OSHA’s lawyers) have been furloughed during the shutdown (down to 71 from 728).  We received calls from the individual Solicitors assigned to all of our active citation contests notifying us that they would not be working during the shutdown, and our cases would not advance during that time.  The U.S. Chemical Safety and Hazard Investigation Board (CSB), which investigates incidents at fixed chemical facilities, has kept only three of its 40 employees and three board members active.

Notably, the federal government’s shutdown will not immediately impact non-federal employees in the twenty-one states where OSHA has approved state-run occupational safety and health programs.  In these state-plan states, normal day-to-day activities should continue as usual.