By Brent I. Clark and Meagan N. Newman
The recent shutdown of the Federal Government has impacted Federal OSHA. We have been advised that most OSHA area offices are being manned by a small crew who are limited to working on emergency type issues such as fatalities and claims of imminent danger. All other routine OSHA activities, such as inspections, informal settlement conferences, notifications to employers regarding alleged hazardous conditions, etc. are on hold. Consequently, employers who have recently been issued OSHA citations cannot currently exercise their right to conduct an informal settlement conference with OSHA and may be forced to file a Notice of Contest to preserve their rights. There is no confirmation that the governmental shutdown will excuse an employer who has failed to file a Notice of Contest within the applicable contest period–although, arguably the 15 “working day” time period for filing a Notice of Contest is extended by any day that the Federal Government is not working. Employers who are currently undergoing an inspection will not likely have any contact with OSHA during the shutdown.
The shutdown is also affecting employers with ongoing Federal OSHA cases. The Federal Occupational Safety and Health Review Commission states it is closed during the shutdown. Further, on October 1, 2013 the Chief Judge for the Office of Administrative Law Judges issued an order advising that the shutdown is affecting cases handled by their office (i.e., certain OSHA investigated whistleblower cases) and that trial dates and discovery deadlines will be reset or time frames tolled during the duration of the shutdown.
In anticipation of the shutdown, we noticed unusual OSHA activity. For example, OSHA rushed to conduct closing conferences on ongoing inspections and appears to have similarly rushed to issue OSHA citations. Employers who were issued citations in the weeks prior to the shutdown will be well served to analyze whether OSHA may have made mistakes in rushing to issue citations as the shutdown loomed. Similarly, employers issued citations following the shutdown should closely examine whether the shutdown has inappropriately impacted their inspection and any citations that OSHA might issue.
Nearly half of the states have their own state run and operated OSHA program. Consequently, it appears to be business as usual in these state run OSHA programs. Consequently, it is important for employers to understand whether they are regulated by Federal OSHA or state OSHA. Of course, companies with facilities in multiple states may be governed by Federal OSHA in certain states and thus impacted by the shutdown. Whereas operations in state plan OSHA states may be unaffected.