Under the Federal Aviation Administration (“FAA”) Modernization and Reform Act of 2012, Congress gave the FAA six months to issue a policy statement outlining those instances where OSHA could exercise jurisdiction over the safety and health of flight attendants. PL 112-95, Feb. 14, 2012, 126 STAT. 135.

On August 27, 2013, the FAA issued a final policy statement outlining three areas that OSHA could regulate for cabin crewmembers on aircraft in operation. 78 FR 52848. This policy statement will allow OSHA to apply its hearing conservation standard (29 C.F.R. § 1910.95), bloodborne pathogen standard (29 C.F.R. § 1910.1030), and hazard communication standard (29 C.F.R. § 1910.1200) to cabin crewmembers. However, the policy statement does not apply to flightcrew members (i.e., pilots and co-pilots). The policy takes effect September 26, 2013, but OSHA will not begin to enforce the standards until March 26, 2014. During this six-month period, OSHA will “engage in outreach and compliance assistance activities” with the airlines.

The three OSHA standards will apply only to cabin crewmembers on aircraft in operation. In its policy statement, the FAA defined “in operation” as “the time [an aircraft] is first boarded by a crewmember, preparatory to a flight, to the time the last crewmember leaves the aircraft after completion of that flight, including stops on the ground during which at least one crewmember remains on the aircraft, even if the engines are shut down.” An aircraft crewmember is any employee who is “assigned to perform dut[ies] in an aircraft cabin when the aircraft is in operation (other than flightcrew members).”

According to the Federal Register Notice, the FAA and OSHA do not anticipate that OSHA will need to conduct enforcement inspections on board aircraft. OSHA’s bloodborne pathogen, hazard communication and hearing conservation standards require employers to develop and implement programs for each of these areas for affected employees. The FAA and OSHA anticipate that enforcement of these standards can be done by a review of airlines programs to verify compliance without having to conduct an investigation on board an aircraft.

While the enforcement of these three standards will be new to the airline industry, OSHA’s regulations on recordkeeping (§ 1904) and access to employee exposure and medical records regulations (§ 1910.1020) have always applied to airline employees. Additionally, OSHA’s whistleblower protections (section 11(c) of the OSH Act, 29 U.S.C. § 660(c)) continue to apply to cabin crewmembers.

OSHA remains preempted to enforce its standards on aircrafts in operation other than those specifically stated in the FAA policy statement. Additionally, the FAA stated that “the general duty clause will not be applied to the cabin environment…[and] [i]f the agencies later decide to add additional hazards including any hazards covered by the General Duty Clause, they will use a transparent process including notice and comment to adopt such changes.” OSHA cannot use the General Duty Clause to regulate potential hazards, such as cosmic radiation, ergonomics, heat stress, slip and falls or pinch points.

Airline employers should ensure they have the appropriate bloodborne pathogen, hazard communication and hearing conservation programs and relevant training in place for aircabin crewmembers prior to the March 26, 2014, enforcement date.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.