Washington Update: Furloughed employees, missed deadlines

When Congress failed to agree on funding levels for fiscal year 2014, which began Oct. 1, the first federal government shutdown in nearly 20 years led to furloughs for thousands of employees, as well as cutbacks of numerous government services.

OSHA was severely affected by the shutdown. Nearly 90 percent of its workforce was furloughed, and inspections were limited to fatalities, catastrophes and employee complaints of imminent, deadly danger. Regulatory development stopped. Compliance assistance stopped. Many scheduled and unscheduled inspections stopped.

The shutdown ended Oct. 17 with the passage of a bill funding the government through Jan. 15. But the effects of the 16-day shutdown were very real.

Rick Kaletsky served OSHA for two decades as a compliance officer and experienced a number of short-term shutdowns in the ’80s. He summed up his feeling on those shutdowns concisely: “It felt disappointing and disrespectful.”

When he was furloughed, Kaletsky was forced to go home when he could have been on the job finding hazards that could injure people. Now an occupational safety consultant based in Connecticut, Kaletsky points out the irony of a shutdown: “Essential” federal government services continue, but not OSHA. Not protecting people at work.

The effects of the recent shutdown extended beyond Washington. Twenty-seven states operating their own occupational safety and health program receive a significant portion of their budget via grants from the federal government. With funds frozen, those grants were not available, according to Butch Tongate, deputy secretary of New Mexico’s Department of Environment and chair of the Occupational Safety and Health State Plan Association.

As much as 50 percent of a State Plan state’s enforcement funding, and as much as 90 percent of compliance assistance funding, comes from the federal government. Similar to federal OSHA, many State Plan states limited services during the shutdown so that only incidents such as fatalities or “imminent danger” situations were addressed, while compliance assistance programs – geared toward helping employers comply with safety laws – virtually ceased.

Deadlines and backlog

OSHA had to deal with other issues during the shutdown as well, such as deadlines and backlog. Violations have a six-month statute of limitations. That means from the time OSHA identifies a violation, the agency has six months to issue penalties to an employer for the violation. With several investigations started before the shutdown, the agency may have found itself unable to process violations in time.

“Unless it’s a really small case, 90 percent of the cases I see are filed right before that deadline, like the day before or the day of” that six-month limit, said Tressi Cordaro, workplace safety and health attorney and partner at the Washington, D.C. Region office of Jackson Lewis LLP.

Employers that allegedly violated safety standards could face no repercussions if violations are not filed within six months. But this issue cuts both ways.

Employers who contest OSHA citations have their cases heard before an administrative law judge with the Occupational Safety and Health Review Commission. Once the ALJ decides a case, either party – the employer or the Department of Labor – can appeal that decision. A discretionary review of the appeal must be granted within 30 days, or the ALJ decision becomes final.

The OSHRC shutdown contingency plan does not mention who is assigned to look over or process these petitions for discretionary review, so employers or DOL could lose out on an appeal opportunity by default.

“The potential for getting off on technicalities for both sides is there,” Cordaro said.

With the shutdown now over, OSHA faces a backlog of whistleblower cases. This leaves OSHA employees with a mountain of catch-up work, in addition to current activities.

For Kaletsky, every time a shutdown ended he was happy to be able to go back to the job. “I felt relief, not just for me, but for the system of protection that was now going to be returned,” he said.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.