On August 21, 2013, the Federal Aviation Administration (FAA) issued a Policy Statement describing the extent to which it has ceded to the Occupational Health and Safety Administration (OSHA) its prior exclusive authority to regulate the safety and health aspects of the work environment of aircraft crewmembers.
Executive Summary: On August 21, 2013, the Federal Aviation Administration (FAA) issued a Policy Statement describing the extent to which it has ceded to the Occupational Health and Safety Administration (OSHA) its prior exclusive authority to regulate the safety and health aspects of the work environment of aircraft crewmembers. The FAA determined that, for non-flightcrew members during "aircraft operations," OSHA can enforce its standards for hazard communications and bloodborne pathogens. OSHA also can enforce its hearing conservation standards for employees working in the aircraft cabin.
Background
In July 1975 the FAA issued a policy statement containing the agency's determination that, because of its authority to promote safety in civil aviation, its regulatory program "fully occupies and exhausts the field of aircraft crewmember occupational safety and health." In other words, no other federal agency, including OSHA, had authority to regulate the health and safety aspects of aircraft operations. An aircraft was defined to be "in operation" from the time it is first boarded by a crewmember preparatory to flight until the last crewmember leaves the aircraft after operation of a flight, including ground stops during which at least one crewmember remains on the aircraft, even if the engines are shut down.
In August 2000, the FAA and OSHA agreed to jointly evaluate the circumstances, if any, under which OSHA requirements may apply to non-flightcrew members during aircraft operations without compromising aviation safety. In December 2000, the agencies issued a joint report concluding that aviation safety would not, "for the most part," be compromised by application of OSHA standards for recordkeeping, bloodborne pathogens, noise, sanitation, hazard communications, antidiscrimination, and access to employee exposure/medical records. They recognized, however, that there might be engineering and administrative issues that could implicate aviation safety. In the following years, the agencies had continuing discussions regarding this issue.
The FAA Modernization and Reform Act of 2012 required the FAA to "initiate development of a policy statement to set forth the circumstances in which the requirements of [OSHA] may be applied to crewmembers while working in an aircraft." The FAA's Policy Statement of August 21, 2013, followed this mandate.
The August 21, 2013 Policy Statement
The FAA's August 21, 2013 Policy Statement explained that the agency has determined that its regulations do not entirely "encompass the safety and health aspects of the work environments of aircraft crewmembers while the aircraft is in operation" and that there are other working conditions for which it has not promulgated standards. Thus, in those areas in which the FAA has not occupied the field, and only for non-flightdeck crewmembers, there is room for OSHA regulation. In the Policy Statement, the FAA agreed that OSHA could enforce its standards for aircraft cabin crewmembers in certain areas. Those areas are: "OSHA's hazard communication and bloodborne pathogens" regulations and "OSHA's hearing conservation standard." The FAA noted that it has existing regulations governing sanitation standards, so its own standards would continue to apply.
The Policy Statement also indicated that there would be a subsequent joint-agency MOU to "establish procedures to identify any additional working conditions where OSHA requirements may apply," and that interested parties would have an opportunity for comment before any additional policies are adopted. The Policy Statement noted that there are OSHA requirements that "are not safety and health standards and do not address working conditions" that have applied to air carriers in the past and will continue to apply. Those include OSHA regulations on record-keeping and access to employee exposure and medical records, and antidiscrimination and whistleblower regulations (for example, AIR21).
OSHA will not conduct enforcement activities for six months after the policy's effective date, and prior to that time OSHA will (according to the FAA) engage in "outreach and compliance assistance activities."
The Bottom Line
Prior to the publication of the August 2013 Policy Statement, OSHA had no role in regulating the safety and health aspects of airline operations related to when an aircraft is "in operation." With the implementation of the Policy Statement, OSHA will have a role in regulating certain safety and health aspects of the work environment of aircraft cabin crewmembers when an aircraft is "in operation." These areas are hazard communication, bloodborne pathogens, and hearing conservation. We expect to hear more from the FAA and OSHA about implementation of these regulations. FordHarrison will be hosting a webinar in September that will provide more information regarding the OSHA regulations and implementation of the FAA's new policy.
If you have any questions regarding this Alert, please contact the author, Andy McClintock, amcclintock@fordharrison.com, who is a partner in our Atlanta office and member of FordHarrison's Airline Industry practice group, or the FordHarrison attorney with whom you usually work.