With Richard Fairfax Retiring, a Crossroads for OSHA?

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

Richard Fairfax, Deputy Assistant Secretary of Labor for Occupational Safety and Health, has announced that, as long-expected, he will retire on May 3, 2013. As Melissa Bailey, Managing Shareholder of Ogletree Deakins’ Washington, D.C. office stated to the media, Fairfax has been “the heart and soul” of the agency. He has served the agency in numerous capacities for 34 years, and his vast institutional knowledge cannot be replaced and will be missed. Although not always in agreement with industry and employers, he was willing to discuss important issues brought to his attention by members of the employer community. He was willing to assume that nearly all came in good faith and was open to listening to concerns.

Fairfax brought to the national office of the Occupational Health & Safety Administration (OSHA) a broad range of experience that few can match. An industrial hygienist by training, he had served as a Compliance Officer in the field, as Director of Enforcement, and, for approximately the past two years, as Deputy Assistant Secretary. He brought a combination of “real world” and national policy experience to many of OSHA’s activities, ranging from the development of National Emphasis Programs targeting specific industries, such as refineries, to determinations about enforcement issues, including settlements, to the development of directives and interpretation letters on a broad range of issues. Fairfax also shared important data about OSHA’s activities with the public, contributing to an impression of transparency.

With Fairfax’s departure, who will become the driving force on many of the initiatives that he spearheaded? Will the sense of openness be continued? Will there be an effort to utilize the agency’s personnel so that, collectively, the range of experience he offered will be brought to bear on major issues? Will OSHA’s priorities change, and if so, how? Indeed, what should the employer community expect from OSHA enforcement on the national and local levels?

A review of major issues at OSHA reveals how important the agency’s approach to these matters can be.

Development of standards

In a recent, lengthy investigative article, The New York Times highlighted OSHA’s inactivity on developing new standards to address serious workplace health hazards. Even relatively uncontroversial safety standards, such as ones for electric power generation, transmission, and distribution—proposed nearly nine years ago—have yet to be issued. The head of OSHA, Dr. David Michaels, recently affirmed publicly what most of those involved in OSHA have known and said for years: the rulemaking process is broken, and there does not appear to be the political will to fix it or to provide the resources to do so. If anything, the situation will likely become worse with the new sequester.

Instead of developing new standards, OSHA has taken to less formal means of addressing issues with the effects of its standards. For example, the construction industry has complained that provisions in the cranes and derricks standard addressing certification of crane operators contain previously unrecognized requirements that operators receive certification for the lifting capacity of each crane they operate, rather than be certified in crane categories. There is also ambiguity as to what constitutes “certification” of crane operators. OSHA has asserted that the time for the construction industry to have raised this issue was years ago, during the rulemaking process that resulted in the standard. Nonetheless, to address the issue, OSHA recently conducted “stakeholder meetings,” a technique OSHA has used in the past. Such informal gatherings provide affected interested parties the opportunity to express concerns, but create no legal obligations for OSHA to change anything.

This controversy illustrates the points made by critics of the agency. Who at OSHA will step into the role of seeking informal solutions to important issues involving the interpretation and application of standards, recognizing that formal rulemaking changes are not going to happen? Who will have the internal clout and wherewithal that Fairfax had to effectuate changes?

Enforcement

In place of rulemaking, OSHA has largely turned its attention to enforcement. With the support of the U.S. Department of Labor’s Office of the Solicitor, OSHA has pursued aggressive enforcement policies that many believe push the envelope in terms of their legality under the Occupational Safety and Health Act of 1970 (OSH Act.) An example is the “enterprise-wide relief” theory, under which OSHA and the Solicitor contend that citations issued at a single facility allow OSHA to seek an order from the Occupational Safety & Health Review Commission (the Review Commission) requiring abatement in an employer’s entire operation. More specifically, OSHA purports to have the legal authority to mandate abatement of a hazard not only at the facility that received the citations, but at all of the facilities under the company’s control. OSHA claims that it is entitled to seek such a broad remedy because the OSH Act contains vague, boilerplate language allowing the Review Commission not only to affirm or reject citations and proposed penalties and abatement, but also order “such other relief” as it deems appropriate.

Another example is the Severe Violator Enforcement Program (SVEP), under which OSHA—exercising what it claims is unreviewable discretion—can place an employer that has received citations with certain classifications on a list so that the employer receives heightened inspection scrutiny. At a recent meeting of the American Bar Association (ABA) OSHA Committee, it was pointed out that under the program, as issued, those employers that had been removed from the program still appeared on the quarterly published list of SVEP employers, with a line drawn through their names. There was no way for an employer to be removed from the list completely. Fairfax has stated publicly that he would look into this. Although we have not yet seen a public announcement, OSHA apparently has changed this procedure so that employers that no longer qualify for SVEP, whether by settlement or decision, will be completely removed from the list. Notably, at the ABA meeting, representatives of the Office of the Solicitor acknowledged that the statutory authority for this program is, at best, debatable.

In individual citation cases, employers are often seeing aggressive positions advocated by OSHA and the solicitors as to assertions of privilege, interpretations of standards, characterizations of violations, and even seemingly well-settled issues such as the scope of non-admissions provisions in settlement agreements. Non-admissions language often is important in settling cases, for it limits the likelihood that OSHA citations, settlements, and files can be introduced in state court litigation where damages for injuries may be sought. OSHA also is continuing to press state plans to be aggressive in enforcement.

Further, Michaels’s philosophy and practice of “regulation by shaming” continues. Even relatively modest citations are accompanied by press releases containing provocative language and factual assertions of sometimes debatable accuracy. This is especially true when there has been a serious accident, even if no willful violations have been alleged. Indeed, many employers have commented that it sometimes seems that once the press release has been issued, OSHA is content that it has done its job. When citations are later shown to be without merit, press releases confessing error or announcing useful settlements that promote employee safety and health, are not issued.

Many employers are familiar with traditional ideas of how to prepare for OSHA inspections. Most are not as familiar, however, with how to deal with a nasty public relations problem that OSHA may inject into the issuance of citations. This is a challenge that employers need to anticipate. It calls for expertise beyond that of traditional safety and health professionals.

As OSHA’s policies and priorities evolved over the past five years, employers and industry groups often turned to Fairfax to review agency positions from a practical point of view. He did not always agree with the employer viewpoint, but his openness contributed to the credibility of the agency. It will be interesting, and important, to see who inherits this role. Ultimately, his approach served the goal of enlisting all involved to promote the safety and health of American workers.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.