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OSHA director nominee faces tough questions at confirmation hearing

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President Donald Trump’s nominee to head the U.S. Occupational Safety and Health Administration pledged to work with agency staffers to advance its safety mission, including examining ways to improve collaborative programs with employers.

But a Democratic senator raised questions about his commitment to workplace safety during his confirmation hearing Tuesday even though he pledged to pursue criminal penalties, including jail time, against employers whose willful violations of workplace safety laws result in employee fatalities.

In November, the president nominated Scott Mugno as assistant secretary of OSHA. Mr. Mugno is currently the vice president for safety, sustainability and vehicle maintenance at FedEx Ground.

“In the safety profession, there is no higher calling and few higher positions than this one,” Mr. Mugno said during in his confirmation hearing on Tuesday. “The opportunity to fulfill OSHA’s mission to assure safe and healthful working conditions for all working men and women is an honor and noble work.”

“Safety professionals, regardless of what sector they come from, all have same goal: safety,” he continued. “The discussions or debates on how to reach that goal can at times lead some to believe one side or another doesn’t believe in the goal. Nothing could be further from the truth. A top priority of mine is to lead and facilitate transparent discussions between those safety professionals in our mutual quest to fulfill the goal.”

But Sen. Patty Murray, D-Wash., questioned Mr. Mugno’s commitment to workplace safety, given his work with the U.S. Chamber of Commerce, which has sued to overturn several OSHA regulations, including its controversial electronic record-keeping rule. She also questioned him over fatalities of FedEx workers, including one that occurred on Thanksgiving.

“I’m concerned about your record that stands against everything OSHA should stand for,” she said.

Sen. Murray said Mr. Mugno has “consistently opposed stronger safety and health protections for workers,” including OSHA’s respirator and ergonomics standards, and asked him if there has ever been an OSHA regulation that he did support, to which he replied that he did not recall whether he has written any comments in support of any OSHA regulation.

Sen. Elizabeth Warren, D-Mass., said OSHA’s budget is “so tight” that the agency can only inspect workplaces once every 150 years, which is “why deterrence is so important,” and asked Mr. Mugno if he would commit to pursuing criminal penalties including jail time against employers who willfully violate workplace safety laws, leading to employee fatalities.

“If the circumstances are right, the elements are met and in consultation with the Solicitor’s office at the Department of Justice, yes,” he said. “And I have talked to the secretary about that, and I know he feels the same way under those circumstances.”

Sen. Warren also asked Mr. Mugno if he would reinstitute OSHA’s deterrence policy of issuing press releases about major violations and proposed penalties above $40,000, with the Trump administration only issuing 36 such press releases to date.

“I do agree that communications of these type of events has an advantage in others knowing what’s happening out there, so I think that’s why this is critical, to find out what the right criteria is,” he said.

Mr. Mugno said he “fully respects the role organized labor has played in the safety arena over its history,” and highlighted his own experience as a union member who wrote grievances, some of them about workplace safety issues. He also cited his work at FedEx with the pilots’ union to resolve issues related to hazardous materials and infectious disease prevention and control during a 2009 pandemic.

Sen. Lamar Alexander, R-Tenn., asked Mr. Mugno about OSHA’s Voluntary Protection Program, which focuses on employers who have implemented effective safety and health management systems and maintain injury and illness rates below national averages for their respective industries. A bill has been introduced to expand the program, which Sen. Alexander said “seems to me to be a good way to get OSHA out of the business playing gotcha with 130 million workers at 8 million worksites, creating an environment in most of those sites of cooperative working together to create safe workplaces and then focusing your inspectors on the higher risk worksites.”

“The opportunity to expand the Voluntary Protection Program (and) other compliance systems that expand the knowledge about compliance with OSHA’s regulations, as well as just improving safety and health in workplace, is an excellent way to expand OSHA’s mission,” Mr. Mugno said in response. “It should not be viewed as mutually exclusive from the other tools in the toolbox such as enforcement and standard setting.”

If confirmed, Mr. Mugno pledged to work with the secretary of labor and career OSHA staff on expansion of the VPP.

Sen. Alexander also asked Mr. Mugno about an OSHA memo that raised the issue of whether a franchisor and franchisee could both be held liable as employers under the Occupational Safety and Health Act.

“OSHA … has long had a multi-employer worksite doctrine in conducting its inspections and citations,” Mr. Mugno said. “It seems to have worked very well over the decades, and therefore I think OSHA addresses that issue very well through that doctrine.”

Sen. Susan Collins, R-Maine, asked Mr. Mugno about comments attributed to him in Business Insurance in 2006 that employers have to look harder at the employee to further improve workplace safety, which she said some commenters have taken out of context to suggest he was attributing worker injuries to off-site activities.

“What I meant in that comment has only proven to be even more true as the years have passed since then,” Mr. Mugno said. “If safety was a sport, it’s a team sport, and everybody involved in trying to improve safety and health in the workplace has to have skin in the game.”