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Addition of third commissioner should clear safety review backlog

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The Occupational Safety and Health Review Commission is fully staffed after years of lacking a third commissioner — years that have created a case backlog that legal experts hope the commission will move quickly to address.

Employer representatives are also hoping the review commission provides more guidance on the applicability and scope of the U.S. Occupational Safety and Health Administration’s authority in several areas, namely its use of the general duty clause to cite employers and its process safety management program.

James Sullivan, who had 37 years of experience representing employers in labor, employment and occupational safety and health law issues and had been a shareholder with law firm Buchanan Ingersoll & Rooney P.C. and a member with Cozen O’Connor in Philadelphia, was sworn in as a commissioner on Aug. 28. This followed the nomination and confirmation of Heather MacDougall, a 20-year veteran in representing employers in labor, employment and occupational safety and health law, to chair the commission. Cynthia Attwood, nominated by President Barack Obama in 2009, is the third commissioner and had previously served in multiple positions at the U.S. Department of Labor.

Fully staffing the review commission was critical, as it is the independent federal agency tasked with deciding contested citations and penalties resulting from OSHA inspections, according to legal experts. Affirmative votes of two commissioners are needed to decide a pending case; but even when there are two commissioners, it can be more difficult to reach an agreement to dispose of a pending case, as both must agree on all of the issues in the matter, the review commission noted in its draft strategic plan, on which comments were due Nov. 17. The review commission has been without a third commissioner 71% of the time during the five-year period starting with fiscal year 2013, according to the draft.

“They’ve been hampered by not having a full panel for a while,” said Katie Bennett Hobson, Austin, Texas-based associate with Katten Muchin Rosenman L.L.P. “I’m sure they will be working through that backlog now that they have a full panel of commissioners.”

Employers and their representatives are hoping that a full panel means that appeals of decisions from administrative law judges of the review commission are addressed and resolved more quickly. 

“I think employers will be happy, certainly, that the speed with which appeals are finally determined will speed up,” Ms. Hobson said. “From a practical standpoint for the review commission, it means that any cases that are complex — issues where one member of the commission might come down one way and another might come down another way — without that third member, they’re simply not going to be able to reach a consensus on a lot of decisions. I can see how it would make deciding many cases impossible, either because they’re controversial and commissioners have different opinions, or because the issues are so complex that the odds of agreeing on every little factor are slim. Both the agency and employers will probably be satisfied to see the review commission able to work through these cases more quickly.” 

However, employers should not assume that future decisions of the commission will be in their favor, even with Mr. Sullivan on board, legal experts say.

“While we expect every decision to be made in an objective fashion, I think that employers can know there is somebody on the panel that may have argued and looked at these decisions before from the perspective of the employer,” said Punam Kaji, a Dallas-based attorney in the labor and employment and OSHA practices of Haynes and Boone L.L.P. “(But) I don’t think it’s advisable for us to take for granted that because we now have someone with an employer-friendly resume on the panel that we are guaranteed to get more employer-friendly outcomes.”

“I don’t necessarily think there will be a significant change,” said Ilana Morady, a San Francisco-based associate at Seyfarth Shaw L.L.P. “I like to think all the commissioners stay true to the law and look at each case from a purely legal basis without involving a politic element too much.”

But Mr. Sullivan worked in private practice and was appointed by President Donald Trump, she noted.

“In some sense, you can expect his outlook to be a little more conservative,” Ms. Morady said. “In the past, the employer side has seen OSHA as expanding beyond its authority, reading requirements into the standards that don’t exist. If I had to guess, the new commissioner may take a hard look at what is required under the standard.”

Employers and their representatives will be watching how the review commission weighs in on several key issues, including OSHA’s use of the general duty clause, which the agency has increasingly relied on to cite employers in the absence of OSHA standards covering particular risks. For example, the review commission will consider the agency’s use of the general duty clause in one case where an employer was cited for an employee drowning during a sea lion training exercise, and another in which a 24-year-old social service coordinator was stabbed to death by a mentally ill client.

“That’s really a hot issue right now — how the general duty clause applies to workplace violence and what employers’ duties are to protect their patients who might have a history of violence,” Ms. Morady said.

The review commission is also expected to decide a case that could result in an expansion of the scope of OSHA’s process safety management program — a case that arose out of a 2012 incident at an Oklahoma refinery in which a boiler exploded, killing two employees.

Legal experts say they look to review commission decisions for guidance in advising their employer clients.

“If the case is interpreting a standard in a way that may expand the black-letter law or may interpret it in a way more favorable for OSHA than it is for the employer, then it discourages an employer from contesting,” Ms. Kaji said. “To the extent we can get some good precedent or language out of some review commission decisions, that would be a good outcome for employers.”