The ABA – OSHA Committee held its 2017 Midwinter Meeting in Jupiter Florida from March 7 – 10. It was well attended by OSHA practitioners across the country including many prominent government attorneys including: Susan Harthill, Deputy Solicitor for National Operations; Thomas Galassi, Director, Directorate of Enforcement Programs, OSHA; the Honorable Covette Rooney, Chief Judge, U.S. Occupational Safety and Health Review Commission; and Heather MacDougall, Acting Chairperson, Occupational Safety and Health Review Commission.
Many in the audience wondered how the new Administration might affect OSHA in the next four years. As expected, the typical response from the government side was business as usual with one government attorney commenting, “smaller but mightier.”
The various panels throughout the conference discussed timely OSHA issues (many of which have been covered in prior blogs here) including the new electronic recordkeeping rules, annual indexing of penalties, developments in process safety management, criminal prosecutions following workplace fatalities, targeted enforcement initiatives and anti-retaliation issues.
During one panel which discussed legal issues arising from OSHA inspections, there was a particularly lively exchange between management attorneys and OSHA representatives on two specific issues: 1) the right of non-employee, union representatives in a non-union worksite to participate in a walk-around inspection and 2) the right of hourly employees to have a management representative participate in an OSHA interview.
As to point 1, there was clearly some disagreement on when such a union representative might be “reasonably necessary” to assist a CSHO during an inspection and also whether OSHA had materially changed its policy on this issue over the years.
As to point 2, there was uniform agreement that from a strict legal perspective, an hourly employee would have a right to request a supervisor to participate in his/her interview. Notwithstanding the consensus, many management attorneys expressed their experience that CSHO’s may not understand this principle and have refused to allow supervisors to sit in on such interviews. There was also sharp disagreement as to the fundamental reasons that an hourly employee might make such a request. Indeed, some management attorneys properly questioned whether they would even want a supervisor to participate in such an interview which is obviously a fact-sensitive analysis.
To what extent funding, hiring freezes and other actions the new Administration may implement in the future may ultimately affect OSHA’s enforcement efforts remains to be seen, but there is little question that occupational safety and health issues continue to evolve and employers all of sizes and industries must remain vigilant to ensure continued compliance.