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The Occupational Safety and Health Review Commission may be ready to tackle some of the toughest workplace safety issues now that it has three commissioners after years of being short-staffed.
The lack of a full panel created a litigation backlog that has frustrated employers’ efforts to resolve contested citations and proposed fines from the U.S. Occupational Safety and Health Administration in dozens of major cases.
But following Senate confirmations earlier this year, employer representatives are looking to the review commission to provide critical guidance on the applicability and scope of OSHA’s authority in several areas, particularly its use of the general duty clause to cite employers and its process safety management, or PSM, program.
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 its draft strategic plan, on which comments were due Nov. 17. A short-handed review commission is a major challenge because affirmative votes of two commissioners are needed to decide a pending case. But even with two commissioners, it can be more difficult to reach an agreement to dispose of a pending case, as both must agree on all the issues.
That could change following the Aug. 28 swearing in of James Sullivan, who had 37 years of experience representing employers in labor, employment and occupational safety and health law issues. 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.
Thomas Wilson, a Houston-based partner in the labor and employment practice of Vinson & Elkins L.L.P., said he hopes the new commissioners, given their practitioner backgrounds, will focus on adding as much clarity as possible to the interpretation of OSHA standards and regulations so employers are able to comply “without playing a guessing game.”
“When you don’t know how a standard is going to apply, it’s difficult to do the right thing when it comes to compliance,” he said.
However, employers should not assume that future decisions 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.”
Employers and their representatives will be watching how the review commission weighs in on 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.
“I’ve had a number of fights with OSHA over (the general duty clause’s) application because I’ve had some circumstances where something happens and, yes, it’s a tragedy, but it’s not something that was either necessarily foreseeable or such a hazard that it really should be addressed in terms of this type of citation,” Mr. Wilson said.
The review commission is also expected to decide a case that could strengthen or weaken OSHA’s efforts to expand the scope of its 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. In Secretary of Labor v. Wynnewood Refining Co. L.L.C., an administrative law judge held that a boiler that was not itself a PSM-covered process was still subject to the standard based on an expansive theory of interconnectivity to covered processes, according to Katie Bennett Hobson, Austin, Texas-based associate with Katten Muchin Rosenman L.L.P.
Under the Obama administration, OSHA had a stronger enforcement posture than some previous administrations, so the review commission’s guidance on the scope of the agency’s authority is crucial, legal experts say.
“It wouldn’t be surprising if OSHA under (President Donald) Trump was less interested in the enforcement side,” said Ilana Morady, a San Francisco-based associate at Seyfarth Shaw L.L.P. “I think OSHA was just very active in the past years, issuing a lot of citations, and then you had a lot of employers contesting those citations. OSHA still seems to be in full force these days, but it’s possible in the next few years that the agency might stop issuing as many citations, or citations might get resolved more easily at the informal conference level rather than having to litigate.”
The U.S. Occupational Safety and Health Administration’s increased penalty structure is contributing to a backlog of contested citations at the Occupational Safety and Health Review Commission.