Source: Safety Law Matters

With the departure of Alexander Acosta as Secretary of Labor, the department immediately got an acting chief who is expected to more closely align with the White House. Meanwhile, the nominee to replace him, Eugene Scalia, is well known for his DOL and workplace safety-related law practice. What do these new leaders mean for OSHA and MSHA?

Patrick Pizzella steps in as Acting Secretary of Labor

Acting Labor Secretary Patrick Pizzella will manage the helm of DOL until Eugene Scalia is confirmed by the Senate. No date for a hearing on Scalia’s nomination has been scheduled on the calendar of the U.S. Senate Committee for Health, Education, Labor and Pensions (HELP) as of this writing. It could be some time. Secretary of Defense Esper’s confirmation took seven months.

Until Scalia arrives, DOL’s leader will be Pizzella, in the past a conservative lobbyist, who has long been involved in labor and workplace-related issues. Many believe that he is fairly well aligned with the White House, including with Acting White House Chief of Staff Mick Mulvaney and White House Labor Advisor James Sherk.

Having a close White House ally leading DOL may be a change. As a result, while Pizzella could wait until Scalia is confirmed to make any major regulatory changes with the new secretary’s input, he may also be positioned to move forward administration priorities in the interim. Indeed, given a possible extended confirmation process and the end of the administration’s term in sight, the White House and Pizzella may not want to wait. In the case of OSHA in particular, moving forward with regulatory efforts may be even more important since that agency is still without a permanent leader. Perhaps for that reason, OSHA seems to be moving ahead with at least some regulatory work (such as lockout/tagout – see below).

Nominee Scalia has years of experience with employment and labor issues

Scalia, son of the Supreme Court’s late Justice Antonin Scalia, has most recently been a litigator representing corporate clients before federal administrative agencies, including on employment and labor law matters. In addition to his private practice experience, he served as the Solicitor of Labor, the chief legal advisor at the DOL, under President George W. Bush from 2001-03 and as a special assistant to then-Attorney General William Barr from 1992-93.

As the nominee for Solicitor of Labor in 2001, Scalia reportedly enjoyed bipartisan support from former DOL solicitors in the Clinton, George H.W. Bush, Reagan and Nixon administrations. His confirmation hearing even included an admiring note he had received from Justice Ruth Bader Ginsburg. The current Republican-controlled HELP Committee seems most likely to approve sending his nomination to the Senate floor – very possibly by a vote along party lines.

Scalia seems to have embraced the administration’s de-regulatory agenda, particularly calling its policy of eliminating two rules to offset the cost of each new rule a “very significant executive order and the most important government rulemaking since Ronald Reagan’s cost-benefit executive order in the 1980s.”

Views on OSHA enforcement

Since labor and employment law have been Scalia’s areas of expertise as a lawyer, he would bring to the post extensive regulatory and labor law experience, deep understanding of administrative law and the rulemaking process and his stated respect for the rule of law. He also understands the important roles that both OSHA and private companies play in securing safe workplaces. In a speech before the ABA in 2002, he commented that “good companies recognize that their workers are integral to their [the company’s] success and should be protected and respected” and that one method of protecting workers is by “complying with occupational safety and health laws.”

Scalia has urged OSHA to focus its limited enforcement resources and aggressively prosecute “those who disdain the rule of law and the legal process itself.” He also advocated targeting inspections performed by OSHA on worksites with injuries that result from violations covered by OSHA regulations and that are considered serious, willful or repeat violations. He said the goal should be to use OSHA’s limited resources to ferret out the most egregious offenders, to meet enforcement priorities, to increase prosecutorial success rates and to protect workers by preventing injuries that result from violations of OSHA law.

On an important role for unions

With regard to the role of organized labor and federal regulatory enforcement, Scalia described his views in a thought-provoking piece published in the Harvard Journal of Law and Public Policy in 2001. There, he proposed the adoption of an “integrated labor and employment policy” approach that would enable regulators to defer to unions more so the unions could play a more productive role in promoting workplace safety, among other areas. Essentially, he argued that unions can help regulate employee behavior. For example, he noted that OSHA can, but rarely does, defer to a labor-management grievance and arbitration process to determine the result of a whistleblower matter.

On another occasion, he reiterated that he has “seen unions and their lawyers advocate passionately and effectively for safety and health protections above and beyond those provided by law,” helping to contribute to workplace safety.

Recognition of MSHA’s inspection challenges

Of course, in his role as Solicitor of Labor, Scalia had exposure to MSHA enforcement as well. In a 2005 article in the University of Pennsylvania Journal of Labor and Employment Law, he discussed the challenge that MSHA faces with managing enforcement resources when some might expect it to be ever-present since it must inspect every property two or four times each year.

Explaining a dynamic familiar to many in the industry, he understood the pressure on MSHA to investigate intensely: “When a dangerous condition at a mine causes serious injury or death, MSHA will have been there recently. When it was there, what did it find? If it did not find the hazard, why not? If it did find the hazard, what did it do to address it and was that enough? For MSHA to identify a violation in a post-accident investigation, is for the agency to raise the possibility that it erred. That sort of admission can be difficult, and in this sense the high ‘intensity’ of MSHA inspections can be among the challenges that confront that agency.”

Supporting an effective whistleblower process

In the same article, Scalia also talked about the importance of the whistleblower process as an “auxiliary means of achieving compliance” that helps agencies manage limited resources. He suggested that making sure processes like that are functioning and respected is a priority. He recalled a case in which DOL was criticized by the court for taking 18 months to seek temporary reinstatement for a miner. He said that he worked with MSHA leadership at the time to establish timetables and a monitoring system to be sure complaints would be handled quickly.

He added, “When those who make good faith safety and health complaints are subject to retaliation, it erodes an important source of government information on potential violations of the law. The government, in turn, is forced to place greater reliance on less reliable sources, such as … random inspection schemes,” like OSHA’s site-specific targeting.

OSHA regulatory action on the horizon?

As Pizzella takes the helm and Scalia prepares to follow him, a number of regulatory developments could be on the way, though many seem to be moving slowly until now. Here are a few areas and rules where change might be in the works:

• Lockout/tagout: As we reported previously, OSHA has a pending Request for Information (RFI) about possibly making changes to modernize lockout/tagout in light of advanced technology, robotics and control circuits.

• Beryllium construction and shipyard sectors: Revocation of the ancillary provisions of the final rule regarding occupational exposure to beryllium in construction and shipyard sectors which was previously finalized on Jan. 9, 2017. OSHA is currently reviewing comments prior to finalizing the rule.

• Silica: Possible modifications of rule, particularly adding new tasks and dust control measures to Table 1. On July 29, 2019, OSHA reportedly submitted a draft RFI to the White House along these lines. (In 2013, Scalia reportedly criticized the breadth of the then-proposed silica standard and compared it to OSHA’s ergonomics regulation that Congress repealed in 2001. In the 1990s, he was also critical of OSHA’s ergonomics rule and the rule’s underlying scientific support.)

• Communication tower safety: Continued delays in completing its small business review process (SBREFA). The completion date in the 2018 Fall Unified Agenda was scheduled for October 2018. However, the date for completion in the Spring Unified Agenda of May 2019 has come and gone without any further action indicated.

• Emergency response: Continued delays in initiating SBREFA small business review. The initiation date in the 2018 Fall Unified Agenda was scheduled for October 2018. The date for completion in the 2019 Spring Unified Agenda of May 2019 has come and gone without any further action indicated.

• Cranes and derricks in construction: Continued delays in analyzing comments and publishing a final rule. The date for analyzing comments is seven months behind schedule as indicated in the 2018 Fall Unified Agenda.