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Pandemic workplace safety duties coupled with a steady drop in the number of Occupational Safety and Health Administration inspectors since 2014 have challenged the agency, legal experts say.
“It's objectively true that OSHA has been shrinking, and the staff has been shrinking year over year for a while — really going back to the (2013) sequestration and some government shutdowns during the Obama administration,” said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP.
Mr. Conn referred to a Dec. 13 report by the U.S. Department of Labor’s Office of Inspector General on the department’s top management and performance challenges that found the decline in inspectors from a high of 860 in 2014 to 750 in 2021 had made it difficult for OSHA to protect workers at an estimated 8 million worksites.
The annual report followed one in November in which the OIG said OSHA “did not sufficiently protect workers from COVID-19 health hazards” during the pandemic.
Jessica E. Martinez, Los Angeles-based co-executive director of the National Council for Occupational Safety and Health, said there “is an urgent need for OSHA to add more inspectors, more whistleblower investigators and more staff throughout the agency to effectively enforce our safety laws and prevent unnecessary injuries, illnesses and fatalities.”
The U.S. Bureau of Labor Statistics on Friday released its annual Census of Fatal Occupational Injuries, finding “that a worker dies every 101 minutes from a preventable incident at work,” she said. “So, every day of delay in getting more OSHA inspectors on the job to identify and reduce workplace hazards can cost an additional 14 lives.”
The OIG report also found that OSHA has been challenged in
protecting workers who report potential worksite safety violations due to failure in some cases to complete subsequent whistleblower investigations within the statutory requirement of 30, 60 or 90 days.
“The pandemic caused a significant increase in the number of whistleblower complaints OSHA received, while the number of full-time equivalent (FTE) employees, including inspectors within OSHA’s Whistleblower Protection Program, decreased,” the report said. During the early months of the pandemic, from February through May 2020, the whistleblower program received 4,101 complaints, a 30% increase from the year-earlier period, the report said.
OSHA did not respond to requests for comment.
The latest report noted that it can take up to five years for an inspector to be fully trained and that more money in the agency’s budget this year did not correct the issue.
“Even though OSHA’s budget request included the hiring of 155 new inspectors in FY 2022, the current lack of available inspectors and time lag for an inspector to become fully trained can lead to less inspections, diminished enforcement of high-risk industries, and, ultimately, greater risk of injuries or compromised health for workers,” the report said.
“There has been a major brain drain in the past few years caused by the retirement of many seasoned inspectors,” Melissa Peters, Walnut Creek, California-based shareholder with Littler Mendelson P.C., wrote in an email. “Certified safety and health officers who were considering retiring early were likely pushed to do so after the pandemic. I imagine the pressure placed on inspectors since 2020 … has been enormous.”
“Like any profession, it takes time for an inspector to know what they are doing,” Ms. Peters wrote. “Even OSHA offices that have hired inspectors likely won’t feel relief for several years. The increase in employee awareness of safety in the workplace since the pandemic is challenging. An increase in complaints means more site inspections. One inspector can accomplish only so much in one day.”
And inexperienced inspectors can introduce more problems for employers facing inspections, according to Adam Young, Chicago-based partner at Seyfarth Shaw LLP.
“For employers, OSHA’s staffing concerns and use of new compliance officers often mean that the compliance officer conducting the inspection does not have industry knowledge and is less familiar with the relevant requirements,” he said.
“They also may not yet be familiar with OSHA’s Field Operations Manual or other standard OSHA procedures,” he said. “This can lead to attempts to expand inspections for which OSHA has no legal basis and inappropriate questions during employee interviews.”