By Brent I. Clark, Benjamin D. Briggs, Patrick D. Joyce, Adam R. Young, A. Scott Hecker, Melissa A. Ortega, and Matthew A. Sloan
Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Sarasota, Florida. The meeting includes representatives from the U.S. Department of Labor, OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health from the U.S. Department of Labor, spoke on Wednesday, March 9, 2022, about the Biden Administration’s priorities and initiatives for fiscal year 2022, which included providing “good” and safe jobs for workers. OSHA plays a big role in that goal, Parker stated. OSHA will focus on key components, such as: COVID-19; high risk work affecting people of color; supporting safe jobs in construction; and revitalizing its health and safety occupational program. In regard to COVID-19, Parker noted that OSHA will work toward issuing a broader infectious disease standard to “prevent history from repeating itself.” This broader standard would be in addition to the existing standards applicable to COVID-19.
The Assistant Secretary also spoke about OSHA’s new initiative, which was announced on March 7, 2022, to focus its enforcement effort and resources for inspections in hospitals and nursing care facilities treating COVID-19 patients. The Assistant Secretary added that 15% of OSHA inspections in 2022 would take place at these facilities. Other priorities for the Biden Administration include heat-related hazards, safety inequality in the workplace, and staffing throughout OSHA.
Seema Nanda, Solicitor of Labor at the U.S. Department of Labor, followed up and noted that the Office of the Solicitor will prioritize employee misclassification, early intervention in retaliation cases, and workplace violence. The Office of the Solicitor will “use all the tools in its toolbox” in the OSHA context, by focusing on its use of warrants, subpoena power and subpoena enforcement, enhanced abatement, and coordinating with the Department of Justice in regard to civil and criminal penalties.
Kimberly Stille, Director, Directorate of Enforcement of OSHA and Dionne Williams, Deputy Director, Directorate of Enforcement of OSHA spoke at length about key enforcement initiatives for 2022, including moving to treating COVID-19 as endemic, focus on heat-related hazards, updating and streamlining its enforcement policies, and protecting vulnerable and underserved workers. Stille and Williams reaffirmed OSHA’s continued focus on using the General Duty Clause to cite employers for COVID-19 hazards and noted that updated COVID-19 guidance will be published “soon.”
The U.S. Department of Labor speakers noted that employers may follow and use its Emergency Temporary Standards safe harbors.
After an informative panel on ethics and professionalism from Occupational Safety and Health Review Commission Chief Administrative Law Judge Covette Rooney, Federal Mining Safety and Health Review Commission Chief Administrative Law Judge Glynn Voisin, and Federal Mining Safety and Health Review Commission Administrative Law Judge Thomas McCarthy (with some ethics-related vocals), we also heard from the Commissioners from the Occupational Safety and Health Review Commission and the Federal Mining Safety and Health Review Commission. The Commissioners discussed current trends in petitions for discretionary review, the current makeup of the Commissions, differences in procedures, how the two Commissions handle arguments and decisions, and what the Commissioners see as best practices in briefing, arguing cases and practicing before both Commissions.
More to come from the conference tomorrow.