Scott Mugno Nominated to Head OSHA

After months of rumors, the White House has finally announced that it has nominated Scott Mugno, Vice President for Safety, Sustainability and Vehicle Maintenance at FedEx Ground in Pittsburgh, to be an Assistant Secretary of Labor for Occupational Safety and Health.

Who is Scott Mugno?

The biography on the White House press site reads:

He was previously the Managing Director for FedEx Express Corporate Safety, Health and Fire Protection in Memphis, Tennessee.  His responsibilities in both those positions included developing, promoting and facilitating the safety and health program and culture.  Mr. Mugno was twice awarded FedEx’s highest honor, the FedEx Five Star Award, for his safety leadership at FedEx Express.

Mugno is clearly knowledgeable about safety and health, although he has a few upsetting notions: At a Chamber of Commerce function last year, Mugno expressed interest in “sunsetting” certain OSHA rules. “‘We’ve got to free OSHA from its own statutory and regulatory handcuffs,’ said Mr. Mugno. He noted that much has changed since OSHA was established in 1971, and that maybe some regulations should be subject to sunset provisions.”  Sunsetting means that after a certain fixed time, they either expire or you have to re-issue them.  There is currently nothing in the law that allows standards to be sunsetted unless OSHA goes through a regulatory process determining whether they are still needed or not.

All in all, of course, it could have been much worse. Mugno is no Scott Pruitt (or Jeff Sessions. Or Betsy DeVos. Or Ben Carson.) And as I’ve written before, there are basically only four choices you get to head up an agency like OSHA (or MSHA).

1. A worker-oriented safety and health advocate (Someone like David Michaels who headed the agency in the Obama administration)
2. A safety and health professional. (Sort of like Bush II’s first OSHA head, John Henshaw, or Bush I’s pick, Jerry Scannell.)
3. A campaign contributor or ideologue who knows very little about mining or mine safety, but whose main focus is to undermine the agency’s mission.  (See EPA administrator Scott Pruitt or Reagan’s OSHA head, Thorne Auchter)
4. An industry executive who knows the industry, and possibly something about safety.

Obviously, Category 1 is out of the question. Mugno seems to fall into the Category 4. Most likely a typical Republican pick who will want to shift the balance from a strong enforcement program to a larger compliance assistance program, but won’t try to dismantle the agency.

What Do We Need to Watch Out For?

There are a few things we will be watching out for over here at Confined Space World Headquarters.

1. Enforcement vs. Compliance Assistance: No matter what administration is in power, OSHA always balances a strong enforcement program and an active compliance assistance program.  Despite accusations that the Obama administration was all enforcement and no cooperation or compliance assistance, the Assistant Secretary David Michaels paired a strong enforcement program with a very active compliance assistance program that focused not only on employers, but also on vulnerable workers. The Obama administration also maintained the VPP program, focusing on the program’s integrity, rather than size. Similarly, while the Bush (II) administration significantly grew the VPP program and created the Alliance program, it also maintained OSHA’s enforcement program for the most part.

   The question will be whether Mugno lets OSHA fall into the same trap that the Bush administration did: Growing the VPP program to the point where it stressed the rest of the OSHA budget and impacted the VPP program’s integrity because the agency didn’t have the resources to ensure that only the most deserving employers were allowed in the program.

   And will Mugno fight hard to grow OSHA’s budget? OSHA has had a flat or declining budget since 2010 — and even a flat budget means a budget cut. Will Mugno fight for a larger OSHA budget that can support a robust compliance assistance and enforcement program?

2. Standards: One thing that Republicans hate — and especially this administration — is OSHA standards. Will Mugno push the agency forward on important new and updated protections despite the anti-regulatory philosophy of the Trump administration? OSHA currently has several important standards on the regulatory agenda that need to move forward. One of the most important and furthest along is infectious diseases. In a world where any day we could be on the verge of a deadly worldwide flu pandemic, where we’ve already had a frightening brush with Ebola, where health care workers in Canada were the first to fall victim to SARS, health care workers — the country’s front line first responders — need to be protected or our entire health care infrastructure will collapse.

   Workplace violence is also a vitally important issue for this nation’s caregivers who are caring for the country’s most vulnerable populations. And the Process Safety Management standard that protects not just chemical plant workers, but also the communities living near the plants.Meanwhile, just a few weeks ago, we saw three more terrible deaths when workers fell off of a television tower. OSHA is currently in the early stages of work on a cell tower standard that even the cell tower industry wants. It was almost ready for the first stage of the regulatory process — the small business review panel – at the beginning of the year. Where is it?

   Finally, we’re still waiting to see how OSHA is going to propose to weaken the Electronic Recordkeeping standard which requires employers to send injury and illness information into the agency and prohibits retaliation against workers for reporting injuries or illnesses.

   Of course, any new OSHA protections are going to run up against Trump’s one-in, two-out Executive Order which would require two worker protections to be removed for every one added. Will Mugno be able to convince Secretary of Labor Acosta — and the White House — that exceptions must be made to save workers’ lives?

3. Press Releases and Transparency: OSHA is a small agency. The AFL-CIO estimates that for OSHA to inspect every worksite in the country, it would take over 150 years.  The best way that OSHA can leverage those resources is to magnify the effect of every enforcement action, and the best way to do that is through strong, educational press releases.  This is not just me whining; there is actual evidence that press releases encourage employers to clean up their workplaces, and reduce workplace injuries.

   While the Bush administration issues press releases for every enforcement case above $70,000 and the Obama administration for every case above $40,000, the Trump administration has issued only a very small handful of enforcement press releases despite hundreds of large enforcement cases.  In other words, the Trump administration is missing hundreds of “learning moments” that could actually save workers’ lives. Will Mugno resume to practice of all previous administrations and start issuing enforcement-related press releases again?

   Similarly, OSHA’s new Recordkeeping Modernization standard requires employers to send their injury and illness numbers to OSHA every year. The intent of the Obama administration when it issued this regulation was to publicize those numbers on its website — both to give workers information on what companies were safer than others, and to encourage employers to improve safety and health conditions so that they would compare favorably to others in their industry. Will Mugno follow through?

4. Vulnerable workers:  Day laborers, workers whose first language is not English, temporary employees — all of these groups of workers and others work in the most hazardous industries, suffer the most injuries and fatalities and are difficult for OSHA to reach. During the Obama administration, OSHA made a concerted effort — through national and regional conferences, work with local and national worker groups, the Susan Harwood training grants and work with their employers —  to reach and educate these workers about the hazards in their workplaces, and their rights under the law; and to ensure that their employers understand their responsibilities.

   In addition, the Trump administration and the House of Representatives have proposed to eliminate the Susan Harwood Training grant program that provides training grants to non-profit organizations that help vulnerable workers and employees of small businesses. Will Mugno fight to maintain the program?

5. Hazardous Industries: It’s hard for an agency as small as OSHA to cover everyone, so the agency has to focus on the most hazardous industries. Will OSHA continue to issue national and regional emphasis programs in industries such as chemical facilities, poultry, auto parts, fertilizer and others? Will Mugno be open to talking with workers from these industries and the unions and other groups that represent them?

There are probably many other issues that we’ll watch out for and write about, but these should be enough to start with — and to ask him about when his confirmation hearing comes up in the Senate.

Given the circumstances we’re forced to live under for the next three years and three months, I’m somewhat hopeful — always optimistic (even about the Dodgers) — and ready to provide valuable advice to the new Assistant Secretary should he seek it.  We can always hope.