David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health recently addressed the Second Quarter 2016 KSAG meeting. Dr. Michaels was confirmed by the U.S. Senate in December 2009. He is the longest serving Assistant Secretary in the history of the Occupational Safety and Health Administration ("OSHA").
During his remarks, Dr. Michaels discussed the federal Worker Endangerment Initiative. Under this initiative, the Department of Justice ("DOJ") and the Department of Labor will jointly work to prosecute crimes involving workplace health and safety violations. He specifically referenced the memorandum prepared by Deputy Attorney General Sally Quillian Yates in December 2015, which was circulated to all 93 U.S. Attorneys across the country. In this memorandum, Deputy Attorney General Yates urged federal prosecutors to work with the DOJ's Environmental Crimes Section in pursuing worker endangerment violations. Dr. Michaels observed that worker safety statutes generally provide for only misdemeanor penalties, and that the memorandum encouraged prosecutors to consider using Title 18 and environmental offenses, which often occur in conjunction with worker safety crimes, to enhance penalties and increase deterrence. Dr. Michaels emphasized that he has instructed all of OSHA's Area Directors to contact the U.S. Attorney for their jurisdiction to forge relationships to further this initiative.
Dr. Michaels also addressed OSHA's efforts to increase public transparency of employer injury and illness records. He believes that making data public will "nudge" employers to increase efforts to prevent injuries. Dr. Michaels also perceives public shaming of employers as a highly effective tool to improve an employer’s safety performance. He noted that OSHA will continue to rely on strongly worded press releases associated with citation issuance in high profile inspections in an effort to get the attention of employers. He also spoke passionately about his concern that employer safety incentive programs that directly reward employees and managers for low injury rates strongly discourage injury reporting.
Finally, Dr. Michaels discussed OSHA's efforts to reform its Process Safety Management ("PSM") standard. OSHA is currently completing a review required by the Small Business Regulatory Enforcement Fairness Act of 1996 ("SBREFA"), and continues to review the information that OSHA has received in response to its December 2013 Request for Information. He made clear that the agency is interested in engaging with interested stakeholders. Once the agency completes its SBREFA review, Dr. Michaels believes it will take OSHA at least one year to issue a proposed rule.
Dr. Michaels acknowledged that the agency has been "in regular contact" with the U.S. Environmental Protection Agency ("EPA") in connection with EPA's efforts to revise the Clean Air Act’s Risk Management Program. OSHA, however, has not been conferring with the California Division of Occupational Safety and Health ("DOSH") as part of that agency's efforts to issue a new PSM standard for California oil refineries. He observed that OSHA would be available to provide guidance to DOSH, if needed, but that this effort would remain independent as long as California's regulations are as effective as its federal counterparts. Dr. Michaels further stated that recommendations from the U.S. Chemical Safety Board, including recommendations regarding process safety and reactive chemicals, will be considered as part of OSHA's PSM reform.