UPDATE: OSHA, the Department of Labor and the Shut Down

OSHA: Plus ça change…

A lot of catching up to do. So let’s start with OSHA

As we move into Trump Year 3, we still have no prospect of seeing an assistant secretary at OSHA anytime in the near future. Scott Mugno, if he’s still interested, would have to be re-nominated and then re-approved by the Health, Education, Labor and Pensions Committee before once again trying for full Senate confirmation.  Mugno and other Labor Department nominees had been blocked last year by Democrats because Republicans were blocking the confirmation of Chai Feldblum to the EEOC and Mark Gaston Pearce to the NLRB. Neither Feldblum nor Pearce of them will likely be renominated (at least not soon), so that obstacle might have disappeared. But given the number of Cabinet heads that are now vacant, and other little things like the shutdown, it’s unlikely that the wheels of the Senate will move very quickly even if the White House gets around to renominating Mugno soon.

But does Mugno still want to leave his cozy retirement home to schlep up to Washington, where he’ll be met by a hostile House of Representatives, just to fill the job for the last year and a half of the Trump administration? Not much time to leave a legacy. According to Politico, who spoke to a “source close to the nominee,”  “Mugno, is ‘extremely frustrated by the Senate’s inability to get its act together to confirm his nomination.” Can’t say I blame him.

Nine of the twenty-one top level positions at OSHA are currently vacant and OSHA has more “actors” than a Broadway play.

Meanwhile, the top ranks of OSHA continue to thin out. Region II Administrator Bob Kulick, OSHA’s the “dean” of OSHA’s Regional Administrators, retired at the beginning of the year leaving vacancies there and in Region VIII where Greg Baxter retired a year ago.  There also seems to be a vacancy in Region VI (Dallas) or maybe Region X (Seattle) as Region X RA Eric Harbin continues to serve as acting RA in Region VI. OSHA’s Training and Education Director has also been vacant now for several years. Moving over to headquarters, there are still Acting Directors in Enforcement, Whistleblower and Construction (where Dean McKenzie tragically passed away last year.) And Region IV Administrator Kurt Petermeyer is temporarily in Washington as acting Deputy Assistant Secretary.  So, in case anyone is counting, nine of the twenty-one top level positions at OSHA are currently vacant and OSHA has more “actors” than a Broadway play. (See the OSHA Organizational Chart)

Things aren’t looking much better at the lower levels of OSHA either. The National Employment Project’s Debbie Berkowitz noted in a recent tweet that “Over 5,000 workers were killed on the job last year, but the DOL has reduced the number of OSHA inspectors to the lowest number in its 48 year history. There were 814 inspectors at the end of last administration, now it’s down to 752 as of Jan 1.”

DOL: Leaky Bucket

Filling high level DOL jobs has been kind of like trying to fill a leaky bucket. Not only are nominations not moving, but current staff and frustrated nominees are dropping like flies. Daniel Gade withdrew his name from consideration for the Equal Employment Opportunity Commission last December, citing a “political mess” in the Senate. Bryan Jarrett, the Labor Dept’s acting wage and hour chief has also left. He had also been nominated for Assistant Secretary for Policy, but is instead heading into the private sector in California. Katherine McGuire, the DOL’s assistant secretary for congressional and inter-governmental affairs, has announced her resignation. She has only been at DOL for a year, but apparently didn’t bargain for having to deal with actual Congressional oversight.  And Acting Assistant Secretary of Labor for the Veterans’ Employment and Training Service Matthew Miller has found employment elsewhere. He will be chief of staff for Rep. Ben Cline (R-Va.) I guess working in the minority in the House of Representatives must be better than life at DOL these days.

And the heads of the Employment and Training Administration, Wage and Hour Division, Bureau of Labor Statistics. Office of Disability Policy, and the Assistant Secretary for Policy have also never been filled.

The Shutdown and OSHA’s Agenda

The Department of Labor (and OSHA) were among the lucky federal government agencies to have an FY 2019 budget passed before the current temper tantrum shutting down other parts of the government. But that doesn’t mean that OSHA has escaped the shutdown’s impact. Just as nothing really happens in life unless it is documented in Facebook or Instagram, no change is real in Washington until it gets published in the Federal Register.

And the Federal Register is shut down.

What does that mean for OSHA? First, penalty levels were scheduled see their annual inflation-related increase this month, but that happens through regulation, and that regulation can’t be published in the Federal Register.  Tragic as that is, the hundred or so dollar difference will probably not make or break anyone.

Of more concern to OSHA leadership and the corporate community, if the shutdown continues, will be the agency’s failure to be able to issue its “Electronic Recordkeeping” rollback, where the agency has proposed to drop the requirement that employers send their detailed injury and illness information into OSHA every year.  OSHA rushed the final regulation into OMB review last month, apparently in an effort to have it out before March when the next batch of injury and illness submissions is due to OSHA. (The agency missed last year’s deadline.)  A recent court decision upheld the ability of outside groups to sue OSHA for not implementing the regulation. The court was quite critical of the defense that OSHA put up,  and some have speculated that if the new “rollback” reg is not issued by March 2, the courts may order OSHA to collect the information anyway.

Tick Tock