OSHA and DOT Laws—Which Apply to Facility and Operations and When?

Employers and safety professionals must know which particular law applies to the specific "working conditions" and hazards in order to be in compliance.

• By Todd B. Logsdon
• Oct 01, 2018

Which government agency is responsible for workplace safety? Most safety professionals would say, "the Occupational Safety and Health Administration, of course." That answer would be correct most of the time. After all, the purpose of the Occupational Safety and Health Act (OSH Act) is to "assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources."

Congress further provided the OSH Act "shall apply with respect to employment performed in a workplace in a state or the District of Columbia." Moreover, the OSH Act defines an "employer" as "a person engaged in a business affecting commerce who has employees, but does not include the U.S. or any state or political subdivision of a state."

So it would appear that OSHA is the government agency responsible for safety, at least for private employers with at least one employee located in the United States and its territories. Municipalities also may be covered by OSHA, and state OSHA plans may cover certain government employees in these states. But does OSHA cover all workplaces or all parts of all workplaces?

Safety Preemption: Are There Limits on OSHA's Jurisdiction?
The OSH Act is not, and was not intended to be, the nation's only safety and health law. Other federal laws affect workplace safety and health. To avoid duplication of efforts between government agencies, Congress provided that if another agency has authority to regulate safety of certain working conditions, then OSHA's authority to do so will not apply.

The OSH Review Commission, in Mushroom Transportation Co., held that once another federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. Congress has passed certain statutes, however, that provide other agencies authority to regulate particular working conditions. But those statutes expressly state they do not preempt OSHA's authority to regulate occupational safety and health in those work places.

How can an employer or safety professional determine whether OSHA or another agency has jurisdiction over a certain workplace? To claim OSHA is preempted from enforcing its standards in a workplace, the employer must be covered by another federal statute. The other federal agency must have actually "exercised" authority under the other statute to enforce safety and health regulations. Finally, the particular working conditions involved must be specifically covered by the preempting agency's standards. No industry-wide exemption arises merely because an agency has exercised authority over some working conditions of an industry. "Working conditions" has been interpreted to mean the particular hazards, both physical and environmental, to which an employee may be exposed.

Another agency may, however, exercise its authority to preempt OSHA not only by issuing regulations, but by simply articulating a policy that its efforts are sufficient and that OSHA regulations are not needed or appropriate. Preemption may apply even where the other agency’s rule is not as stringent as OSHA's. Once it has been determined that a rule issued by another agency has the "force and effect of law," that's all that is required, even if OSHA's rule requires more.

As one might imagine, whether a particular OSHA regulation is preempted by another agency regulation can be a source of confusion, turf battles between agencies, and litigation. In an effort to avoid disputes and foster cooperation, OSHA has entered into agreements known as Memorandums of Understanding (MOU) with certain agencies addressing which of them will regulate specified hazards. By way of example, OSHA has MOUs with the Mine Safety and Health Administration, the Department of Energy, the Environmental Protection Agency, and the Federal Aviation Administration, among others.

What Does the Department of Transportation Regulate?
The Department of Transportation protects the safety and health of employees under federal laws regulating aviation, pipelines, railways, and motor carriers. Under these laws, the secretary of Transportation has issued regulations affecting employee safety in transportation.

Motor Carrier Regulation
DOT has authority over the operation of motor vehicles engaged in interstate or foreign commerce. This includes, among other issues, interstate highway driving, commercial driver licensing, hours of service, seat belt use, and the safe operation and roadworthiness of the vehicles. DOT's jurisdiction, for example, includes regulation of the safety of commercial motor vehicles, which are defined as "a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property," if the vehicle:

• has gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater;
• is designed or used to transport more than eight passengers (including the driver) for compensation;
• is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
• is used in transporting material found by the secretary of Transportation to be hazardous.

DOT has issued regulations for employee safety in the operation of vehicles, as well as equipment specifications. Truck drivers and motor vehicle common carriers, however, are subject to OSHA standards where DOT has not regulated the specific working conditions. For example, if the vehicle in question does not come within the definition of a commercial motor vehicle, for example because it weighs less than 10,001 pounds or only operates "intrastate," then OSHA would have jurisdiction over the vehicle's working conditions. Also, the DOT regulations relating to the handling of hazardous materials do not preempt OSHA standards.

Railway Regulation
Congress enacted safety laws making railroads subject to federal regulation in almost all areas of operation. The Federal Railroad Administration rules cover railroad car and track safety; railroad operations; hours of service of railroad employees; and railroad installation, maintenance, inspection, and repair. Courts have held, however, that Section 4(b)(1) of the OSH Act does not provide an industry-wide exemption. Thus, railroads are exempt from the OSH Act only where the FRA has actually exercised authority over the working conditions at issue.

Practical Examples for Industrial Settings

Plant Railroads
Many industrial facilities receive raw materials or ship finished product by rail. Often the rail cars discharge or receive loads in or next to the facility on rails that are on the industrial facility’s property. Are those operations covered by OSHA or the FRA?

Generally, FRA regulations exclude railroads whose entire operations are confined to an industrial installation and do not go beyond the plant's boundaries. These are creatively referred to as "plant railroads." Merely connecting to the "general railroad system of transportation" by way of a switch for receiving shipments is not considered being part of the general railroad system. If, however, a railroad that is part of the general system enters the plant’s railroad to deliver or pick up, it remains part of the general system, subject to the FRA. The plant railroad does not become part of the general system solely due to this delivery/pickup. Thus, plant railroads are more likely to be under OSHA’s jurisdiction.

Loading Docks
An obvious potential intersection of OSHA and the DOT jurisdictions at an industrial facility is the shipping and receiving department, particularly the loading docks. DOT clearly has jurisdiction over the truck on the highway, but OSHA regulations generally govern workers' safety and health and the responsibilities of employers to ensure their safety at the warehouse, the dock. and in all places trucker drivers go to deliver and pick up loads (e.g., entering the warehouse, restrooms, etc.).

OSHA generally has jurisdiction over "off highway" loading and unloading, including the use of powered industrial trucks, such as forklifts. However, the DOT regulations concerning brakes preempt OSHA regulations regarding chocking trailer wheels while at the loading dock. The safety of the maintenance and repair activities on commercial motor vehicles is generally covered by OSHA regulations, while the specific requirements for maintenance of the vehicle generally are covered by DOT. Finally, the truck driver, whose driving tasks are covered by DOT regulations, is covered by OSHA regulations if s/he is expected to respond to hazardous chemical spills.

Conclusion
Employers and safety professionals should be aware of the various safety and health laws and government agencies that may impact their business and operations, beyond just OSHA, and must know which particular law applies to the specific "working conditions" and hazards in order to be in compliance. When in doubt, erring on the side of employee safety should drive all decision making.

This article originally appeared in the October 2018 issue of Occupational Health & Safety.