The Occupational Safety and Health Administration and the Federal Aviation Administration have just adopted a Memorandum of Understanding (MOU) to implement their joint policy that will allow OSHA to enforce its bloodborne pathogen, hazard communication, and hearing conservation standards in aircraft cabins during flight operations (not including the flight deck crew).
The Memorandum is the culmination of a process previously announced by OSHA and the FAA in November 2012. “FAA Proposes Policy To Improve Flight Attendant Workplace Safety.” In its announcement of the proposed change at that time the FAA said that “under this proposal, flight attendants would, for the first time, be able to report workplace injury and illness complaints to OSHA for response and investigation.” OSHA suggested that the policy would “improve the flying experience of millions of airline passengers.”
With this policy, along with hazard communication (29 CFR § 1910.1200), exposure to blood-borne pathogens (29 CFR § 1910.1030), and hearing conservation (29 CFR § 1910.95), OSHA asserts its authority over aircraft cabin safety issues related to record-keeping (29 CFR Part 1904) and access to employee exposure and medical records (29 CFR § 1910.1020). OSHA continues to have responsibility to investigate employee complaints of discrimination for engaging in protected activity related to safety or health in the workplace under section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c). Investigations of employee complaints of discrimination for providing information about alleged violations of FAA requirements or of any federal law relating to air carrier safety are also OSHA’s responsibility under section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121.
Under the Memorandum the FAA will continue to exercise its statutory authority over all other working conditions of aircraft cabin crewmembers while they are on an aircraft in operation, as well as the occupational safety and health of flight deck crew while they are on an aircraft in operation.
Specifically under the Memorandum the FAA and OSHA have agreed that:
- OSHA will respond to and investigate complaints or referrals through its phone and fax procedure in the first instance.
- OSHA anticipates that it will respond to and investigate complaints or referrals without needing to inspect any aircraft in operation.
- OSHA and FAA intend to meet and review the implementation of the policy statement on a semi-annual basis over the next two years.
Additionally, the Agencies have agreed that if either receives a Freedom of Information Act request which the other believes there are responsive records maintained by the other, they will, to the extent practicable, refer that request to the other agency for it to respond to directly. In those cases, the agency making the referral will notify the requestor that a referral has been made and that a response will issue directly from the other agency.
This is yet another example of OSHA expanding the scope of its reach to areas previously beyond its jurisdiction.
Please contact the authors or your Seyfarth attorney with any questions you may have regarding this topic.