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OSHA leadership void stunts rule-making

Scott Mugno

The stalled nomination of Scott Mugno as assistant secretary of labor for occupational safety and health has left a leadership void at the U.S. Occupational Safety and Health Administration, leaving the agency unable to embark on or advance major regulatory initiatives.

But while OSHA rule-making has essentially stalled due to the leadership vacuum, the agency’s regional offices have continued to aggressively enforce existing workplace safety standards and likely will continue to do so in the absence of political leadership directing them otherwise, experts say.

“It is very surprising to everyone who works in the safety and health practice area not to have a head of OSHA,” said Raymond Perez, of counsel and a labor and employment attorney in the Atlanta office of Jackson Lewis P.C. “Not having someone setting budgets, setting enforcement priorities, has left a vacuum in terms of guidance and leadership.”

On Nov. 1, 2017, Mr. Mugno’s nomination was received by the U.S. Senate and sent to its Committee on Health, Education, Labor and Pensions. Mr. Mugno testified at a hearing on Dec. 5, 2017, and the committee voted in favor of his nomination on Dec. 13. But his nomination had to be resubmitted when it was not voted on by the full Senate by the end of the year. It was again approved by the HELP committee on Jan. 18. A full Senate vote had not been scheduled as of publication, and most experts believe it is unlikely the Senate will vote on his nomination by the end of 2018.

Mr. Mugno has retired from his position as vice president for safety, sustainability and vehicle maintenance at FedEx Ground, a unit of FedEx Corp., in Memphis, Tennessee, according to his LinkedIn profile. He could not be reached for comment, but his profile states he is awaiting Senate confirmation for the OSHA position.

“Washington has become so dysfunctional that we can’t get him up for a vote up or down,” said James Curtis, a Chicago-based partner in law firm Seyfarth Shaw LLP’s environmental safety and toxic torts practice group.

There appears to be no organized resistance to his nomination, with many safety and health experts praising his credentials. Rather, the delay of his and other nominations has been attributed to the prioritizing of judicial nominations, including the contentious confirmation of U.S. Supreme Court Associate Justice Brett Kavanaugh. Loren Sweatt, deputy assistant secretary of labor for OSHA, has been running the agency on an acting basis.

“There’s no real pressure” to get Mr. Mugno confirmed this year, said Mark Ames, director of government relations for the American Industrial Hygiene Association in Falls Church, Virginia. “There’s no scandal, nothing standing in the way of him advancing, but there’s nobody clamoring for him to be (confirmed). I think that speaks to how well Loren is doing in her job.”

For the most part, OSHA has not finalized or proposed major regulations this year, other than its July proposal to amend its electronic record-keeping rule to rescind the requirement for employers to electronically submit information from certain OSHA forms and completing a standard for cranes and derricks in construction in November.

“On the rule-making side, it’s caused most everything to grind to a halt. We’re not going to see any meaningful rule-making,” Mr. Curtis said. “On the enforcement side, interestingly, I think the agency has largely reverted back to what they were doing under the prior administration because they don’t have a leader and they don’t have new policy and new direction telling them how to administrate differently.”

The national office has issued some enforcement guidance to regional directors, some of which have attempted to address employer concerns, experts say.

For example, OSHA issued an Oct. 11 memo that sought to clarify the agency’s enforcement stance on the anti-retaliation provisions of its electronic record-keeping rule with regard to post-incident drug testing and employee incentives programs, which were discouraged under the Obama administration’s regulatory stance.

“We have seen some effort by OSHA to adopt a little bit less of an aggressive enforcement stance on some of these issues than we did under prior administrations,” said Taylor White, Dallas-based senior counsel for Foley & Lardner LLP.

“But I don’t view those as a substantial shift in what the agency has been doing for the last eight to 10 years, and I think employers can and should continue to expect fairly aggressive enforcement,” Mr. Curtis said.

The regional offices have been acting on their own in many ways, including on how aggressively they use the Occupational Safety and Health Act’s general duty clause to cite employers in the absence of a standard governing a specific exposure.

“A lot of these area directors have been there for a while, but I do think they feel pretty autonomous in their ability to make deals with employers,” said Nicole Smith, a Washington-based shareholder with Vedder Price. “Not everything is coming out of Washington.”




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