Everyone from political junkies to average citizens has an opinion on the January 2018 government shutdown, and some may have bets on its duration. However, while the government continues to flounder, the private sector economy continues to run. How does the shutdown affect OSHA and MSHA enforcement?

The two federal safety agencies are part of the Department of Labor (DOL), which will retain some “key employees” working at all of its agencies. But, total headcount will be down dramatically. For general background, during the shutdown, most civilian federal employees (not uniformed military personnel) are furloughed and will not be paid.

According to a January 19, 2018 memo by Kate O’Scannlain, the Department of Labor’s Solicitor, OSHA will have 372 employees working during the shutdown (out of its 1,934 total current employees). MSHA will have 1,099 employees working during the shutdown (out of 2,054 total employees).

MSHA Assistant Secretary Zatezalo submitted a contingency plan for MSHA operations during the shutdown. With the exception of key personnel and the people performing the activities below, MSHA staff will be furloughed and will not be paid.

However, MSHA will continue to inspect mines, including:

  • Regular inspections required by the Mine Act (“twos and fours” – twice a year on the surface and four times a year underground).
  • Targeted inspections at mines that have been prioritized based on the individual mines’ histories.
  • Investigating accidents and miners’ safety complaints.

OSHA’s contingency plan was not revised leading into this shutdown. Instead, it pulled off the shelf the plan written by former Assistant Secretary David Michaels during the last administration. Part of the reason for relying on the previous administration’s plan may be that the Senate didn’t yet get around to voting to confirm the new administration’s OSHA nominee, Scott Mugno.

OSHA’s key employees, who will continue to work and accrue time to be paid after the government resumes operations, include the Regional Administrators, Area Directors, and one senior safety Compliance Safety & Health Officer and one senior industrial hygienist in each area office.

OSHA will carry out emergency enforcement activities in the following areas:

  • Imminent danger inspections.
  • Investigations of workplace fatalities and catastrophes.
  • Investigations of safety complaints received from first responders, media sources, or employees where hazardous conditions could have a high risk of death or serious physical harm.
  • Scheduling of follow-up inspections for high gravity serious violations with no abatement.
  • Enforcement activities on open cases as necessary to meet the six-month statutory deadlines to issue citations.

DOL’s Office of Administrative Law Judges (OALJ) has suspended all “non-essential” operations during the shutdown. All staff are furloughed until the government resumes appropriations.