Seyfarth Synopsis: The Occupational Safety & Health Review Commission (Review Commission) issued two orders this month — the first we have heard from the Review Commission since April 27, 2017. The orders followed, on August 28, 2017, James J. Sullivan, Jr., being sworn in as a new and needed third Commissioner. Also on August 16, 2017, Heather L. MacDougall was sworn in as the Chairman, after being appointed to the position by President Trump. These two orders represent the first of many expected now to come.
For the first time in over two years, the OSHA Review Commission is fully staffed with three Commissioners. The Review Commission is the independent federal agency that provides trial and appellate review of contested cases resulting from OSHA inspections.
Although two commissioners can and have been deciding cases, it is expected that cases will now be addressed more expediently with three Commissioners. In the past years, the Commission has been criticized for its heavy backlog. Dozens of cases await the Commission's attention right now. Although the new 3-person panel has only issued two orders so far, we can expect to see many more orders issue in the coming months.
For employers this means that contests of citations that are appealed from administrative law judge decisions will likely be resolved more quickly than in the recent past. This also means that new case law precedent will be issued, which will affect employer defenses in a variety of safety and health contexts.
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