Will OSHA Target Warehousing, Transportation and Healthcare?
News Analysis
Employers in the warehousing, transportation and healthcare industries may be in line for greater scrutiny in the future because of the Occupational Safety and Health Administration (OSHA) renewal of the agency’s Site-Specific Targeting (SST) inspection program announced earlier this year.
“Due to the increased likelihood and breadth of SST inspections, employers in the warehousing, transportation and healthcare industries should especially assess their health and safety programs and ensure that they are timely reporting their injury and illness data if required,” say attorneys Joseph N. Gross and Brad Wenclewicz of the Benesch Friedlander Coplan & Aronoff law firm.
However, one possible snag for any movement towards increasing federal safety enforcement is the Trump Administration’s proposed budget, which calls for major cuts to OSHA and its parent agency, the U.S. Department of Labor (DOL), along with the Mine Safety and Health Administration (MSHA).
The Administration wants to slash OSHA funding by about $50 million and reduce its full-time workforce by 223 positions—from 1,810 full-time employees to 1,587—shifting the agency’s focus toward increased compliance assistance rather than by pursuing direct enforcement activities. The upshot is that the agency’s enforcement budget would be slashed by $23.7 million.
However, Secretary of Labor Lori Chavez-DeRemer testified at a congressional hearing that the budget cuts will not negatively impact enforcement capabilities, which she said will be met by modernizing and streamlining agency operations, and relying more on technology, data analytics and improved internal procedures to increase OSHA’s capabilities.
She said goals also include reviewing and revising existing regulations to eliminate outdated or redundant requirements in order to make compliance simpler for both OSHA and employers. In her view, the agency will be able to deploy data analytics to identify and focus on the most hazardous workplaces, rather than spreading resources thinly across all employers.
Her plans specifically call for implementing new technologies to be applied to case management, reporting and other communications to speed up investigations and reduce administrative burdens. Cross-training inspectors and creating multidisciplinary teams also will serve to maximize the expertise and adaptability of OSHA’s remaining staff, Chavez-DeRemer argues.
“While she contends that these strategies will allow the agencies to fulfill their statutory responsibilities, lawmakers and critics remain skeptical, warning that the reductions could undermine the agencies’ ability to protect workers and enforce safety standards effectively,” observes John D. Surma, an attorney with the law firm of Ogletree Deakins. “Employers can reasonably expect that the number of inspections they face, other than fatality and catastrophe inspections, could drop if this budget is adopted, but if MSHA and OSHA do develop more modern and streamlined processes, those numbers might not drop dramatically.”
What Else Can Employers Expect?
In general, employers with 10 or more employees must report annually to OSHA the total number of injuries and illnesses experienced at their workplaces. The updated guidance announced by OSHA in May says that the SST program will make use of this injury and illness data from calendar years 2021-23 that was reported by employers in Form 300A when choosing workplaces for inspections.
Because of the broad scope of SST inspections, employers should prepare for increased programmed inspections and enforcement by ensuring they have assessed their health and safety programs to maintain an OSHA-compliant workplace, warn attorneys Leslie Currie, Felicia Watson, and Chuck Trowbridge of the Littler Mendelson law firm.
The OSHA guidance applies to “general industry” establishments, which encompasses most businesses outside of the construction, maritime and agriculture industries, they note. Although the updated guidance prioritizes unprogrammed inspections arising from reports of specific incidents and injuries, OSHA inspectors are expected to conduct far-ranging probes as well, similar in scope to programmed inspections.
“SST inspections are programmed and, as such, comprehensive in scope. While the scope of an unprogrammed inspection is tailored based on a particular accident, injury, complaint or referral, programmed inspections are broader,” the Littler attorneys point out.
They stress that while the updated guidance prioritizes unprogrammed inspections, it also requires that all establishments on the SST inspection list be inspected, with few exceptions. In addition, if an unprogrammed event triggers inspection of an establishment slated for an SST inspection, the two kinds of inspections should be conducted at the same time, they explain.
OSHA instructed its on-site inspectors, called Compliance Safety and Health Officers (CSHO), to evaluate potential hazards “in all areas of the workplace,” while focusing on the areas where injuries or illnesses have been documented by the employer. However, the CSHO may choose to expand the inspection’s scope if it is believed to be justified.
In view of all of these factors, the Littler attorneys are recommending that employers prepare for increased programmed inspections and enforcement by taking the necessary steps to ensure they have assessed their health and safety programs to make sure that they serve to maintain an OSHA-compliant workplace.
Not everyone agrees that the agency’s budgets will be able to fully support the new initiative. Attorney Adam R. Young of the Seyfarth Shaw law firm emphasizes that OSHA’s overall 8% budget reduction will end up having a greater impact because of rising salaries and costs, including the expected need for employee buyouts during a reduction in force if the current proposed budget is adopted.
“With fewer compliance officers and reduced enforcement funding, we expect the agency to deprioritize programmed inspections and send more letters in lieu of onsite inspections relating to complaints and serious injuries,” he says. “While already slow to emanate from the agency, new OSHA standards and standard interpretations may become even less common.”
