Seyfarth Synopsis: Here we go again. The impending federal government shutdown may suspend many enforcement and consultation functions of the United States Department of Labor, including OSHA.
The federal government is currently funded through November 17, 2023. If Congress does not approve a funding deal by the time the clock strikes midnight on Saturday, November 18, the federal government will be left without its glass slippers and will shut down. Under federal law, a failure to fund the government will suspend nonessential government activities, including certain functions of the Occupational Safety and Health Administration ("OSHA). The United States Department of Labor ("USDOL") has developed a contingency plan, as have other government agencies, describing in detail which operations will be maintained and which will be suspended. USDOL's plan covers OSHA.
The plan, if triggered, will furlough about 43% of OSHA staff. All signs point to furloughs covering support operations and not compliance officers.
According to the USDOL contingency plan, the agency will continue to inspect:
- Imminent dangers;
- Workplace fatalities and catastrophes;
- Serious safety and health complaints; and
- Follow-ups relating to abatement and high gravity serious violations.
We understand OSHA has held internal meetings determining that OSHA will continue to issue Serious OSHA citations and conduct informal conferences to resolve those citations. While OSHA will investigate fatalities, other catastrophic events, and high hazard complaints, other inspections for more minor hazards will be postponed.
Per the contingency plan, the Agency will discontinue all:
- Compliance assistance;
- Outreach programs;
- Training classes;
- Technical assistance;
- Rulemaking, including deregulation efforts;
- Whistleblower protection activities not described above; and
- Financial and other administrative efforts.
Appearing before the House Workforce Protections Subcommittee earlier this year, OSHA chief Doug Parker represented OSHA would not be doing "proactive" inspections, likely referring to the programmed inspections that constitute about 44% of OSHA's inspection activity. According to Assistant Secretary Parker, OSHA's recently-announced initiative on respirable crystalline silica, discussed in a prior blog, would be tabled during a shutdown.
While OSHA maintains a fair amount of activity under USDOL's contingency plan, other Department agencies will feel greater impacts. For example, the Wage and Hour Division expects to furlough 1,531 of its 1,538 employees, leaving seven workers to "protect life and property" during any shutdown. Despite these reductions in enforcement personnel, employers must continue to comply with applicable laws – shutdowns do not represent a license to cut corners or relax vigilance, particularly regarding workplace safety and health.
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