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?
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.