As David Michaels takes over as the new Assistant Secretary of Labor for Occupational Safety and Health what should employers expect? The new head of OSHA has a long history in the safety and health field that is instructive. He has a Master of Public Health and has been working as a research professor at George Washington University School of Public Health and Safety. Consequently, he has technical expertise regarding health issues that include exposure to airborne chemicals and contaminants such as asbestos, lead, and volatile organic compounds.

Employers Should Expect Increased Enforcement From OSHA

As the head of OSHA, Mr. Michaels will report to Hilda Solis, the Secretary of Labor. In June 2009, Solis went on record stating that under her oversight OSHA was going to be “back in the enforcement business.” In September 2009, Acting Assistant Secretary of Labor for Occupational Safety and Health, Jordan Barab, echoed these comments when he stated: “Under the new administration, OSHA is heading back to the original intent of the OSH Act. We’re back in the enforcement business and we’re back in the standards-writing business.” Based on our observations, OSHA has in fact become much more aggressive in issuing citations, increasing the characterization of the citations issued, and proposing higher penalties. Employers should expect the following under Mr. Michaels:

  • OSHA will continue to be increasingly aggressive in its enforcement of OSHA standards.  
  • Employers who are inspected should expect that OSHA inspectors will be looking to issue more citations including greater use of the general duty clause and that the citations that are issued are more likely to be characterized as serious, repeat, or willful.  
  • OSHA will be more aggressive when using its enforcement tools. For example, employers with multiple locations and who are part of larger corporate families should expect that OSHA will attempt to use its Enhanced Enforcement Program to attempt to issue more significant citations and penalties.  
  • OSHA’s National and Local Emphasis Programs will be strictly enforced.

Given Mr. Michaels’s background, it would also not be surprising if OSHA were to increase the number of inspections that involve industrial hygiene and health issues with the corresponding increase in the number of citations based on health standards. Health-based programs such as respiratory protection, chemical hazard communication, and bloodborne pathogens will likely be targeted. There have also been indications that OSHA will increase its efforts to investigate and issue “ergonomics” citations and OSHA may attempt to promulgate an ergonomics standard. Correspondingly, it is expected that OSHA will decrease emphasis and funding for its cooperative compliance programs such as VPP.

Employer Response

Employers should refocus their efforts to ensure they are in compliance with OSHA standards before they are inspected. Internal and outside audits of OSHA compliance can be an effective way of measuring current performance and ensuring sustained compliance in the future. Management commitment to OSHA compliance, an effective and up-to-date safety and health program, employee training, and that proper equipment is being provided and maintained are critical in this increased enforcement environment. Employers should not only look to existing OSHA standards, but also consider industry standards and injury trends. Employers should also consider the role of safety committees as part of an overall compliance program and ensure that committee action or inaction is not increasing potential OSHA liabilities. Given the number and complexity of OSHA standards that are applicable to most employers, prudent management demands a hard look at current compliance and most likely requires increased efforts to create an effective safety and health program that can withstand OSHA’s new and aggressive enforcement push. Finally, employers should consider training management in how to effectively manage and handle an OSHA inspection.