A report at the end of last year by DOL’s Office of Inspector General highlights what OIG considers major challenges for OSHA and MSHA in fulfilling their missions. The report also provides a window into where the workplace safety agencies may focus their energies in 2019 – and where employers may face increased risks of enforcement and other liability.

The OIG report, entitled Top Management and Performance Challenges Facing the U.S. Department of Labor, highlights the following major challenges, which could affect enforcement for these industries:

  • Injury reporting among all employers. OIG alleges that employers under-report injuries, making it difficult for the agencies to know which companies have safety hazards and need inspections.
  • “High-risk” industries (construction, forestry, fishing, agriculture and mining). OIG says that OSHA and MSHA have trouble “determining how to best use their resources . . . in high-risk industries such as construction, forestry, fishing, agriculture, and mining.”
  • Construction hazards across multiple work sites. The Inspector General believes that OSHA has difficulty “[v]erifying the abatement of construction hazards” since OSHA citations close when a construction project ends. Of course, if the project is over, there is no further hazard. But, OIG argues that the problems could recur elsewhere and “OSHA received no assurances employers would use improved safety and health practices at subsequent construction sites.”
  • Black lung in mining. Black lung cases are on the rise in certain areas (Appalachian coal mining states). While MSHA is studying the issue, it can take years for the disease to appear, so it will “likely take a decade or more to complete the study.
  • Powered haulage in mining. OIG says that MSHA must tackle powered haulage accidents in mining, which “accounted for 8 percent of all injuries and 50 percent of all fatalities in 2017.” Indeed, MSHA is on the path toward potential rulemaking on that issue, with a comment period that just closed in response to a “request for information” by MSHA.

The OIG report may not only point OSHA and MSHA toward heightened enforcement in these areas, but it may well lead to greater attention and liability elsewhere, especially with the broad-sweeping injury reporting issue. In Washington, Democratic control of the House of Representatives will likely lead to more congressional oversight, which could include hearings that focus on allegations that particular companies failed to report injuries. The enforcement agencies may respond to such pressure with more serious enforcement allegations and even criminal investigations.

Companies can get a handle on their risk – and minimize it. In the case of injury reporting, employers can conduct confidential audits of their injury and illness reporting records, for example, and considering filing corrections where appropriate. Construction firms, mentioned more than once by OIG, should be on the look-out for hazards and violations that may repeat from one work site to another. These can create the possibility of costly “repeat” citations.

In addition, coal mining companies should stay on top of sampling for silica, quartz, and diesel particulate emissions. Given OIG’s and MSHA’s concerns about black lung, MSHA is likely to intensify sampling. It has reportedly ordered additional sampling devices for its inspectors and testing equipment for its lab. Companies should conduct their own sampling and audit their historical results to understand their risk and take any necessary corrective actions.

Companies concerned about these risks or interested in taking proactive countermeasures should contact their Husch Blackwell counsel, Henry Chajet, or Avi Meyerstein.