Recently, the federal government entered a partial shutdown on January 20, 2018, due to a lack of appropriations. Although Congress was able to effectuate a temporary resolution to the funding issue this past week, yet another government shut remains a looming possibility in February of 2018. The Occupational Health and Safety Administration (OSHA), the Occupational Safety & Health Review Commission, and the Department of Labor Office of the Soliticitor are among the agencies that are detrimentally effected during partial government shutdowns.
OSHA’s staffing levels drop from 1,934 to approximately 372 active employees during a government shutdown. OSHA can continue to function on matters of emergencies by responding to serious emergencies and fatalities. Employers should be aware that OSHA will continue to issue citations for cases in which the 6-month statute of limitations will expire. However, normal OSHA inspection activities will not occur.
The biggest impact on OSHA for partial government shutdowns is felt at the local area office level. At each of the ninety-three (93) area offices for OSHA, the skeletal staff will include the Area Director, one Senior Certified Safety and Health Professional, one Industrial Hygiene Specialist, and perhaps one administrative support person. With such depleted number of staff at the area offices, OSHA will not be able to carry on its normal day-to-day functions, including most of its enforcement activity. There will be no compliance officers to perform either planned or surprise inspections, and most likely there will not be anyone to answer the phones at the area offices.
Employers should be aware that they are still required to report workplace fatalities, amputations, losses of eyes, and in-patient hospitalization pursuant to law just as if the government was not shutdown. Employers should also be aware that OSHA’s whistleblower investigators are all furlowed during any government shutdown. The contingency plan for emergency situations focus solely on OSHA’s safety enforcement program rather than its other investigative activities. Therefore, any active whistleblower investigations under OSHA’s jurisdiction will not move forward during any partial government shutdowns.
Further, the Occupational Safety & Health Review Commission, which adjudicates disputed citations, loses a vast majority of its employees during a government shutdown. Therefore, although pleadings and other legal documents should continue to be filed with the electronic filing system, there will be no action taken by the Review Commissionon. Finally, the office of the Solicitor’s staff will drop from approximately 674 employees to 84 employees. As such, active litigation by the Solicitor’s office will, for all practical purposes, stop.
The takeaway is that OSHA will be operating in “suspended animation” during any partial government shutdown. As noted above, OSHA will continue to monitor and respond to emergency situations, but any previously planned inspections or random inspections will most likely not occur. Complaints of safety violations will still be accepted, but most will not be acted upon.
For further information or questions, please contact a member of our Labor & Employment Section.