Navigating OSHA and MSHA Operations During the Federal Shutdown

By Eric J. Conn, Nicholas W. Scala, and Hema Steele

With the federal government now shut down, the Department of Labor (DOL) has invoked its shutdown contingency plan that will remain in effect until Congress appropriates funding.  Shutdowns occur because the Antideficiency Act prohibits federal agencies from operating without appropriations unless they are addressing emergencies involving human life or property.

The following summarizes key implications for employers facing OSHA and MSHA matters.

OSHA

Operations

OSHA will furlough 1,204 of its 1,664 employees, retaining only those essential for emergency and statutory enforcement and to assist orderly shutdown activities. The agency will continue the following enforcement activities:

• • Inspecting imminent danger situations
  • Investigating workplace fatalities and catastrophes and complaints that establish employees may be exposed to hazardous conditions presenting a high risk of death or serious physical harm
  • Conducting follow-up inspections for high-gravity serious violations and no abatement
  • Reviewing and referring whistleblower complaints involving imminent threats to life or property and requiring an immediate response
  • Conducting activities on open cases – where needed to meet the 6-month citation issuance deadline – involving employee exposure to hazardous conditions presenting a high risk of death or serious physical harm

Conversely, OSHA will pause:

• • Programmed inspections
  • Compliance assistance and outreach
  • Training and technical support
  • Rulemaking and deregulatory efforts
  • Non-emergency whistleblower investigations

The DOL’s contingency plan does not discuss the shutdown’s effect on deadlines for contesting citations or completing abatement.  These deadlines are created by regulation and/or statute, and it is our considered opinion that these deadlines are unaffected.  We therefore recommend that employers treat those deadlines as unchanged, even though the practical effect is that OSHA will not review such correspondence until the agency returns to normal operations.

Similarly, all informal conferences scheduled to occur during the shutdown will be cancelled.

Litigation before the Occupational Safety and Health Review Commission (OSHRC)

OSHRC’s contingency plan calls for all 50 of its 51 employees to be furloughed during the shutdown.  The remaining employee will be an information technology specialist who will monitor and maintain the Commission’s technology infrastructure.  According to an OSHRC source, documents filed through the e-filing system will not be filed on the docket during the shutdown, and the Commission will calculate new deadlines once the shutdown is lifted.

MSHA

Operations

MSHA will furlough 711 of its 1,590 employees, with 879 remaining.  They will conduct shutdown activities and continue to fulfill statutory mandates and emergency functions, to include:

• • Completing statutorily required regular mine safety and health inspections per §103 of the Mine Act. Also know as MSHA’s “2s and 4s,” these are required for surface mines at least twice per year, and for underground mines at least four times.
  • Investigating accidents, hazards, and safety complaints.
  • Investigating targeted mines, specific hazards, accidents, and miners’ safety complaints. This includes select analysis for dust and air quality due to imminent safety concerns.
  • Mine emergency support.

MSHA will no longer engage in the following activities during the shutdown:

• • Miner training programs
  • Part 100 conferences
  • Civil penalty collections
  • Equipment certification
  • State grants administration

Concerning contest deadlines, and as described above, we recommend that employers continue to adhere to existing contest deadlines such as submission of Part 100 conference requests and contests of MSHA proposed penalties.

Litigation before the Federal Mine Safety and Health Review Commission (FMSHRC)

The FMSHRC contingency plan dictates that the Commission will keep only 4 of its 51 employees on duty to assist with shutdown operations and to adjudicate disputes arising from mine emergencies where “there is a reasonable likelihood that either the safety of life or the protection of property would be compromised to some significant degree by failure to provide prompt adjudication.” A Notice issued by FMSHRC Chief Judge Glynn F. Voisin confirmed that the Commission’s judges will not consider any documents filed in their existing cases or having due dates during the shutdown.  He further noted that the judges would “handle any filings on a case-by-case basis” once the federal government resumes normal operations.

Takeaways

The Conn Maciel team can shepherd you through the consequences of this shutdown.  Meanwhile, we recommend:

• • Monitoring OSHA and MSHA citation timelines
  • Rescheduling informal conferences once operations resume
  • Maintaining internal safety protocols and documentation in case of delayed inspections
  • Contacting legal counsel for guidance on whistleblower complaints or imminent hazard reporting

For further assistance or legal support during the shutdown, please contact the attorneys in CMC’s OSHA & MSHA Workplace Safety Practice Groups.