U.S. Health and Safety Law: Inspections and Investigations During the Shutdown

    View Authors 1 October 2013

    Last night, Congress failed to reach an agreement to continue funding government operations beyond the end of Fiscal Year 2013. The federal government is, consequently, in the process of shutting-down a significant portion of its civil service. The federal government’s primary agencies tasked with enforcing and adjudicating U.S. safety and health law are not immune to the shutdown.  Indeed, MSHA, OSHA, the Department of Labor’s Office of the Solicitor, and the FMSHRC and OSHRC are all winding down regular operations.

    We do not know at this time when the shutdown will come to an end, but we do know that a large gulf separates the negotiating positions of the President, Republican leaders in the U.S. House and Democrat leaders in the U.S. Senate as they attempt to forge a compromise funding resolution to restore government operations. 

    In the meantime, this alert briefly summarizes the operating plans that MSHA, OSHA, the DOL Solicitor’s Office, and the two commissions have approved to carry out the agencies’ safety promoting mission during the shutdown.  Sharp staff reductions will take place at each agency, with the sharpest reductions taking place at the Solicitor’s Office and at the FMSHRC and OSHRC. Importantly, MSHA and OSHA enforcement activities will continue – though the agencies will target inspections towards investigating targeted and specific hazards, investigating accidents, and investigating miner and employee complaints. 

    But as MSHA and OSHA continue carrying out their enforcement mission, management personnel should be aware that local agency enforcement offices will be operating with a skeleton staff, and in the event that enforcement-related disputes arise, OSHA and MSHA officials may be delayed in responding to urgent requests. 

    Similarly, most personnel at the DOL Solicitor’s Office will not be available – as the office will retain only one attorney in the division of occupational safety and health, and four attorneys in the division of mine safety and health. Consequently, we advise that mine operators and employers continue vigilantly promoting a safe and healthy workplace while the shutdown continues as normal, and invite you to contact the Patton Boggs Safety and Health team in the event that any questions or issues arise during this challenging time.

    MSHA Plan of Operations

    • MSHA will furlough all but 965 employees during the shutdown. Of those employees remaining on the job, 768 inspectors will remain on board.
    • Inspections will focus on “targeted mines and specific hazards; investigations of accidents and miners’ complaints; and sample analysis.”  
    • The targeted inspections will be geared towards mines “which have been prioritized based on the mine’s history of the hazards that put miners’ lives at risk.”
    • Of “executive/managerial/supervisory” staff, 139 will be retained, including 87 field office supervisors and 51 members of senior management staff (13 of which will remain on in Arlington).
    • Forty MSHA employees will remain on board in the regional offices to evaluate plans submitted by mine operators.
    • Three MSHA employees (likely in Arlington) will remain on board to prepare for mine emergencies; though additional employees could be brought back on board in the event of an emergency.

    OSHA Plan of Operations

    • All OSHA employees “involved in enforcing imminent danger situations under Section 13 of the Occupational Safety and Health Act, and those involved in responding to hazardous conditions that present a high risk of death or serious physical harm” will remain on the job.
    • At the regional level, all Regional Administrators will remain on the job, including an assistant regional administrator for administrative programs and enforcement, in addition to a technical support officer.
    • At the area office level, one senior compliance safety officer and one senior health compliance officer will remain on the job. Of senior management personnel, 18 will remain on the job in Washington, D.C.
    • Two chemists and two industrial hygienists will remain on the job at the Salt Lake Technical Center.

    Office of the Solicitor Plan of Operations

    • The Office of the Solicitor will retain 71 employees nationwide out of 728, including the Solicitor, the Deputy Solicitor, and two Deputy Solicitors on a rotating basis.
    • Four attorneys in the Division of Mine Safety and Health will remain on board.
    • One attorney in the Division of Occupational Safety and Health will remain on board.
    • Additional attorneys will be available on a rotating basis in the event of an emergency.
    • Attorneys assigned to federal district and appellate court litigation will be placed into “excepted” status – permitted to remain on board – in the event that court schedules cannot be rearranged, if the courts remain in session at all.

    FMSHRC Plan of Operations

    • The Commission will retain one ALJ and one hearing office employee out of 75 civil servants. 
    • All commissioners, as presidential employees, will remain on the job.
    • Consequently, only “disputes that arise from a mine emergency and are necessary to ensure continued public health and safety” will be adjudicated during a shut-down.

    OSHRC Plan of Operations

    • Nearly all of the 58 staff at the national office will be furloughed, with few administrative exceptions.
    • Commissioners are directed not to “engage in any activity that would cause the Review Commission to incur additional obligational liability,” and are strongly recommended not to report to work or use the agency IT services.
    • No administrative law judges will remain on the job.