OSHA Update: OSHA Back in the Enforcement Business

By Rod Smith and Pat Miller

This Update highlights some of the recent developments at OSHA during the first few months of the Obama Administration.  As these developments make clear, OSHA enforcement activity is on the rise, and employers need to be even more vigilant in ensuring that their safety policies and practices are in compliance with OSHA requirements.. Understanding and exercising employer rights during an inspection or in resolving citations will become even more important.

OSHA's acting head, Jordan Barab, sets the tone for OSHA's push towards tougher enforcement.  Mr. Barab's emphasis on regulatory enforcement can be easily discerned from his background.  Prior to his appointment, from February 2007 forward, he served as Senior Labor Policy Advisor to the House Education and Labor Committee.  This Committee was often critical of OSHA's enforcement under the Bush Administration.  Prior to that he worked for the United States Chemical Safety and Hazard Investigation Board, and served as Special Assistant to the Assistant Secretary of Labor for Occupational Safety and Health.  Mr. Barab has also provided consulting services for the AFL-CIO's health and safety department.  By all accounts Mr. Barab intends to increase OSHA enforcement during his tenure. 

For instance, Mr. Barab has expressed his willingness to resurrect OSHA's focus on ergonomic hazards through the use of the "General Duty Clause."  In 2001, OSHA's proposed ergonomics standard was rescinded by Congress, and OSHA was prohibited from reintroducing it.  Nevertheless, Barab recently stated that OSHA was considering taking a "sector-by-sector" approach to regulating ergonomic hazards through the General Duty Clause.  Employers are now faced with the threat of more ergonomic inspections and citations.

Another indication that enforcement is on the rise is the fact that President Obama's fiscal year 2010 budget calls for a 9.9 percent increase in OSHA's budget.  This is a $50.6 million dollar increase over 2009.  This money is to be used for the hiring of 130 new OSHA inspectors, and contains $227.1 million for enforcement programs.  The budget numbers for federal compliance assistance ($73.4 million) pale in comparison.  As Secretary of Labor Hilda Solis recently stated, enforcement is a "very important part of [her] vision."  In case there was any doubt as to the direction of OSHA, she also recently stated: "Let me be clear: the Department of Labor is back in the enforcement business."  A notable supporter of the budget is the AFL-CIO, whose director of safety and health, Margaret Seminario, recently stated that this budget is a "major change in direction in worker safety and health, and demonstrates the commitment of the Obama administration to moving aggressively to enhance and strengthen worker safety and health protections."

Secretary Solis has also been very clear that federal projects funded by the recent stimulus bill can expect increased OSHA enforcement.  In a recent letter to other cabinet secretaries, Secretary Solis stated that "as you undertake these new projects, please be mindful that [OSHA] may be conducting increased inspections of federal worksites as a result of [the stimulus package]".  She is specifically targeting construction projects which, according to her, include "some of the more consistently hazardous worksites."

The government's increased focus on enforcement is not limited to OSHA regulators.  President Obama recently nominated M. Patricia Smith to serve as Labor Department Solicitor, the head attorney in the Labor Department.  Ms. Smith served as the Commissioner of the New York Labor Department, where she earned a reputation as a tough enforcer of state labor laws.  During her confirmation hearing, she told a Senate Committee that she would bring a philosophy of "proactive enforcement" to the Labor Department, including OSHA. 

Measures are being considered in the House and Senate which will impact employers in the area of occupational safety and health.  For instance, Reps. Conyers (D-Mich.) and Woolsey (D-Calif.) recently introduced legislation which would require OSHA to promulgate a standard mandating the use of mechanical lifts when health care workers move patients.  The House also reintroduced the "Protecting America's Workers Act," H.R. 2067, which will severely increase penalties on employers for OSHA violations, and which will otherwise increase employer responsibilities under the Occupational Safety and Health Act.  This proposed legislation will be discussed in more detail in the next OSHA Update.

Who We Are
Rodney Smith, Pat Miller, and Chuck Newcom are part of Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

For more information please contact one of the members of the OSHA Practice Group: