OSHA staffing ups and downs – what could it mean for employers?

by Husch Blackwell LLP

Part of the Trump administration’s political platform was to shrink the size of the federal government that is not involved in defense and security. As that trickles down to OSHA, what will fewer compliance officers mean for you? From an employee headcount perspective, the administration is achieving its force reduction goals. The Office of Personnel Management reports 10,000 fewer federal employees on the books in September 2017 as compared to a year earlier. A December 30, 2017 Washington Post article and infographic showed the changes in staffing levels for 15 federal departments.

The Department of Labor took the bronze medal for staffing reductions in 2017, coming in third among agencies after Treasury and Education. Labor lost 4.6% of its personnel due to retirements and attrition with no new hiring. Within Labor, OSHA’s staffing drop is purported to be even larger, with a 6% drop in staffing.

Fewer inspectors + more inspections = overextension?

At first blush, the reduction in CSHO’s and managers at OSHA sounds like good news for employers, but OSHA is actually on pace to conduct more inspections in 2017 than in 2016. In addition, most private sector employers will acknowledge that when a workforce is overextended for a sustained period of time, the business does not perform well and mistakes are more likely to happen.

An overextended OSHA workforce means that agency managers and supervisors have to cover multiple regions. This may result in more difficulty scheduling informal conferences, a lack of leadership continuity at your local area offices, and inconsistencies on enforcement priorities. Each of these problems adds regulatory uncertainty into the business environment, even though the odds of receiving a visit from OSHA may drop.

Not surprisingly, employee and workplace safety advocates claim OSHA’s staffing shortfalls are putting American workers at risk, and OSHA seems to agree.

Secretary Acosta testified before Congress in August 2017. In his statement, the Secretary reaffirmed DOL and OSHA’s emphasis on compliance assistance and the Voluntary Protection Program (VPP) as the primary tools for improving worker safety. These tools could compensate for an overburdened inspectorate.

However, he also informed Congress that he approved a streamlined hiring plan for new Compliance Safety and Health Officers. Last month, a DOL spokesman confirmed that OSHA began hiring new inspectors in October.

Poor citations on the way?

Brand new CSHO’s and an overextended management corps at OSHA may not bode well for employers. By way of example, when the Mine Safety and Health Administration (MSHA) went through an inspector hiring boom in the last decade, mine operators endured the growing pains of ticky-tack enforcement actions that more seasoned inspectors would not have issued. This enforcement environment forced mine operators to divert resources away from known safety concerns and towards the spurious whims of the inexperienced inspectors.

Time will tell if the behavior and conduct of OSHA’s new CSHOs will resemble their MSHA counterparts from previous years. If OSHA continues to be short on managers who can mentor these unseasoned CSHOs, the employers on the receiving end of their inspections may be in for a rough ride.

Hopefully the Secretary’s message on compliance assistance will trickle down to his new troops.

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.

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