OSHA Enforcement Suspended

Full enforcement of the Occupational Safety and Health Act (OSHA) ceased as of April 28, 2023. 

On that day, a little known and tiny federal agency called the Occupational Safety and Health Review Commission (OSHRC), lost its quorum and can no longer conduct any official business. 

That’s according to a new report from the Capitol Hill Citizen titled “OSHA Enforcement Suspended” by Steven Wodka.

The OSHRC issues orders that enforce OSHA citations that have been contested. The cases handled by the OSHRC typically involve the most important enforcement actions undertaken by OSHA. 

Under the OSHA statute, enforcement of OSHA health and safety standards begins in the Department of Labor. OSHA employs compliance officers who inspect workplaces. When OSHA finds a violation, a citation and penalty is issued against the employer with a debated. 

However, the employer has the right to contest the citation, penalty, and the abatement order. If it does so, the contested case leaves the jurisdiction of OSHA in the Department of Labor, and goes to a separate, independent agency, the OSHRC, for adjudication. 

Until the OSHRC issues a final order that affirms the citation or the abatement order, the employer is not required to correct the hazard. 

Even if the hazard has already killed or injured workers, or has exposed them to a cancer causing chemical, the hazard can go legally uncorrected and the workers’ exposure continues until the OSHRC issues a final order adjudicating the case. 

When the Review Commission lacks the statutory minimum quorum of two Commissioners, as is the case today, no cases can be decided, although one Commissioner can direct a case for review. 

Wodka reports that this year is not the first time that the OSHRC has lost its quorum. The membership of OSHRC is set at three members who are appointed by the President with the advice and consent of the Senate. Members serve staggered six-year terms, meaning that a vacancy occurs every two years. 

“For over two thirds of its existence, the Commission has been so paralyzed by frequent vacancies that it has been unable to do its job,” said Arthur Sapper, a former deputy general counsel of the OSHRC in 2003 testimony before a House committee. 

In a 2005 report, the House Committee on Education and the Workforce found that the “lack of a working quorum means that OSHRC is unable to perform the critical functions it was designated by Congress to perform, rendering the entire regulatory scheme devised by Congress for the resolution of disputes between OSHA and employers nonfunctional.” 

Aside from a lack of a working quorum, a more frequent occurrence is when one seat remains vacant on the Commission for a prolonged period. 

Because the OSHA statute dictates that action may only be taken by the affirmative vote of two members of the Commission, any disagreement on any point renders a two-member OSHRC incapable of taking action, resulting in a stalemate, Wodka reported. 

Under President Biden, OSHA head Doug Parker has been attempting to arouse an agency that was laid dormant and rudderless by the Trump Administration. 

OSHA enforcement activity has increased under Parker, and the number of contested cases before the OSHRC has increased. From 2021 to 2022, there was a 15 percent increase in contested cases filed with the OSHRC. 

The number of newly filed contests rose from 1,368 in 2021 to 1,579 in 2022. These new cases are in addition to the existing back log of approximately 1,200 cases each year. 

In March 2021, two months after the Biden Administration took office, Commissioner James Sullivan resigned and rejoined the law firm of Cozen O’Connor in order to represent employers “on high stakes matters before all three branches of government.” 

Sullivan left behind Commissioner Amanda Wood Laihow and Chairman Cynthia Attwood. Before becoming a commissioner, Laihow had served as Sullivan’s chief counsel and came to the OSHRC from the National Association of Manufacturers where she served as director of labor and employment policy. 

President Biden has proclaimed that “I intend to be the most pro-union President leading the most pro-union administration in American history.” 

Even though two of the three seats remain vacant, President Biden has yet to nominate either a worker representative or a lawyer with a union background to the Review Commission.

Even Richard Nixon, from the first day of the Review Commission’s existence in 1971, made sure that at least one of the three commissioners came from the labor movement. 

How and why has this sad state of affairs descended on the federal government’s responsibility to protect American workers? 

“Much of the blame can be placed at the feet of Congress and the American labor movement,” Wodka wrote. “Historically, Congress has been non-responsive to the needs of the American worker unless pushed by organized labor. In 1970 the labor movement’s top priority was the passage of the Occupational Safety and Health Act. Jack Sheehan of the United Steel Workers, Frank Wallick of the United Auto Workers, and Tony Mazzocchi of the Oil, Chemical and Atomic Workers worked to get the law passed as Congress originally intended.” 

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