By Eric J. Conn, attorney, Epstein Becker Green
In August 2010, a Delta Air Lines baggage handler was fatally injured in a workplace accident, when the employee was ejected from a baggage tug vehicle while not wearing a seatbelt. As a result of this incident, Delta was cited by the Occupational Safety and Health Administration (OSHA) in February 2011 for alleged violations of regulations under the Occupational Safety and Health Act, including specifically 1910.132, relating to personal protective equipment.
To resolve the citations, Delta entered into a settlement agreement with OSHA on April 17, 2012, that required Delta to pay a modest penalty—$8,500—but also committed Delta to install seatbelts on similar industrial vehicles operated at 90 of Delta’s locations nationwide over the next year. Delta also committed to provide seatbelt training and to mandate the use of seatbelts for 16,000 of its employees. Delta also agreed to waive its right to demand inspection warrants and to permit OSHA to monitor this issue. Finally, the agreement stipulated that general monitoring of implementation of this corporatewide abatement will be conducted by a third party, not OSHA.
The Delta agreement was the first Corporate-Wide Settlement Agreement (CSA) reached under OSHA’s latest June 2011 Guidelines for Administering Corporate-Wide Settlement Agreements. Under these guidelines, OSHA expanded its use of the CSA to a broader range of enforcement cases, including high-profile fatalities. This type of settlement has special implications for the airline industry, in which employers operate at dozens or even hundreds of sites—magnifying both the potential penalties and compliance costs. See our previous posts about the risks of enterprise enforcement.
Settlement in Context
Delta is a participant in OSHA’s Voluntary Protection Program (VPP). On its website, OSHA states “VPP corporate applicants must have established, standardized, corporate-level safety and health management systems, effectively implemented organization-wide, as well as internal audit/screening processes that evaluate their facilities for safety and health performance.” Despite Delta being an active partner with OSHA over the last decade, the settlement agreement appears to be favorable to the agency. On the other hand, Delta avoided inclusion in OSHA’s Severe Violator Enforcement Program (“SVEP”), which can be an option when there is a fatality and OSHA finds “one or more willful or repeated violations.” If SVEP qualification was on the table in these negotiations, it would certainly have given OSHA substantial leverage.
Additional Areas of OSHA Oversight
The Delta incident appears to have drawn more attention to similar potential violations in the airline industry. OSHA issued a letter to the airline industry following the Delta settlement to raise awareness of safety issues with baggage handling vehicles and the need to comply with OSHA’s seatbelt requirements. OSHA also maintains a web page that highlights the myriad OSHA standards that are a part of compliance in the airline industry. A selected list of applicable OSHA standards from this web page includes:
1910.23: Guarding floor and wall openings and holes.
1910.305: Wiring methods, components, and equipment for general use.
1910.132: General requirements (Personal protection equipment).
1910.147: The control of hazardous energy (lockout/tagout).
On this page OSHA also provides a list of common workplace hazards that could be faced by airline ground crew, gate crew and flight crew. For example, there is a link to a Fact Sheet on possible solutions for the prevention of injuries and equipment damage while operating baggage tugs and carts.
Finally, the airline industry is aware that OSHA is not the only federal agency with responsibility for regulating the safety of their employees. The Federal Aviation Administration (FAA) has authority to issue regulations related to flight safety, while OSHA has authority governing the occupational safety and health of employees. This overlap was resolved in August 2000 when OSHA and the FAA reached a Memorandum of Understanding on their safety authority in the aviation industry. This notice stated that while the FAA will regulate the safety of the flight crew while the plane is in operation, OSHA will be responsible for safety regulations for ground crews, maintenance personnel, and flight crews while not operating an aircraft. Thus, those in the airline industry must be sure that FAA and OSHA safety regulations are being followed in the appropriate circumstances.
Eric J. Conn is an attorney with Epstein Becker Green in the firm’s Washington, D.C., office and writes for the firm’s OSHA Law Update blog. Adam L. Zavadil, a summer associate (not admitted to the practice of law) in Epstein Becker Green’s Washington, D.C., office, contributed significantly to the preparation of this post.
Republished with permission. © Eric J. Conn, Epstein Becker Green. All rights reserved.