NVFC Report on the OSHA Ruling
The initial major upheaval of knowing what could, would, should, maybe, could likely, will not likely, confirmed, unconfirmed, short-term, long-term and pending in the meantime has mostly played out for Missouri but leaving 29 States with most of the previous still in play, With the 21 non-OSHA States there remains differing opinions with Kansas still suggesting if this comes to pass with the 29 OSHA States, KS will likely (there is that hiccup) have to adopt to keep their non-OSHA status. That has NOT been suggested in Missouri.
For Missouri, we are holding with what was said in the last article, “Unless something changes with the Emergency Services Organization Standard for Missouri, Federal OSHA has no authority to enforce their regulations on public entities in Missouri as currently written. Missouri is one of the states that has not adopted an OSHA-approved state plan that would require public entities to follow OSHA regulations”.
The public comment period did close on July 22 as advertised and OSHA moved surprisingly fast to Public Hearings which demonstrated for many that they did not take the time to fully evaluate the input or reconsider anything at this time but rather screened it only enough to declare it as valid and not offensive. Some likened it to that pop-up you get when registering for something, “I am not a Robot.” The first and maybe only round of public hearings are set for November 11th and the registration process just to be considered to speak was daunting. NVFC will be testifying in this coming phase along with several supporting partners.
For those who have actively worked with OSHA regulations on a regular basis during their career, concerns for what the future may hold remain. At the core is a very specific internal OSHA policy that goes along the lines of, “a standard applied must meet or exceed”. This was required and applied in those States which opted for State Plans. The reverse engineering of this is the applied standard in the OSHA States eventually attempted for implementation in the Non-OSHA States. Remember what was said of Kansas but to be clear there is no proof of this being planned at this time or in the future for Missouri. It does remain very difficult to accept the logic that an OSHA Standard so vastly different (if enacted) would be applied and enforced in a majority of the States (29) and totally ignored completely in the minority (21). For now, that is exactly how it looks and reads on the surface of everything regarding this.
All said, that leaves just two options, a couple of facts and one prediction. The two options involve calling it a day on all of this and closing the door unless something changes for Missouri. No. 2 is continuing to monitor this for development and consider mutual aid assistance to the other 29 when OSHA makes its final ruling before the House Oversight Committee on Federal Standards. That would be the next chance to influence any change once OSHA releases this standard as final. This will likely not occur until the Summer of 2025, but OSHA seems to be on a very fast track with this. The House Oversight Committee will accept or reject the proposed standard leaving that as the last opportunity to influence any change unless submitted to the full House of Representatives and that would be the last opportunity to influence all of this. Fun fact, the oversight committee is subject to change following the November election, especially the committee chair. If Missouri has a representative on the Oversite Committee, it presents an opportunity, and NO DOUBT, the other 29 states will be reaching out for assistance. That will be a President Jennings/FFAM Board decision.
One fact in all of this will involve how mutual aid will be regulated if responding from Missouri into an OSHA State. As with every state, when you cross the state line, their rules apply unless something in the law allows for visitors – usually not!
The other fact, in the previous article, I touched on 3rd party liability applications in the future and “Sovereign Immunity, or crown immunity, the legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil or criminal prosecution strictly speaking in modern texts in its own courts. State immunity is a similar, stronger doctrine.” It is worth repeating there are those who believe this is the deciding defense and the full protection of the fire service for cause and action. There are also those who point out that provisions for Sovereign Immunity behind its face value do not fit many of the specific types of fire service liability. Not a lawyer, but it brings up some defense questions that are only going to be finalized in the courts.
The one prediction I previously mentioned regarding the ability of the 21 non-OSHA States to compete for AFG, SAFER and other federal grants in the future. The potential need in the 29 OSHA States will make for an overwhelming story of the worst things to come if they do not get help. There is going to be way too much need at the end of the money in all of this. The 2024-25 applications could be the last level playing field for the non-OSHA States on federal grants.
One interesting and not unexpected development in all of this was OSHA struggling without any significant success in defining a volunteer department vs. a combination. That set into motion a gazillion emails and options which so far have crashed and burned in reaching a consensus. Why is that important? Two reasons, but just one for Missouri in the future. Whatever that definition is, it will likely become or applied nationwide and not just in the OSHA States. That definition will come back to Missouri in future AFG & SAFER applications as they are now focusing on percentages of funding in the 3 groups of Career, Combination and Volunteer. As to the other, for now, that just involves the 29 OSHA States. How are they going to manage the new standard if volunteers are exempted and you are a combination department (HUM, that definition again), which could create two departments or keep it as one standard on the career side and include all of the volunteers adding to all things training, management and budget related.
Labor, at least in the 29 OSHA States, has come out in full support of the entire standard as proposed. Unless there is something highly significant in the next 60 days, this will be my last stand-alone article on the proposed OSHA Fire Brigade Standard. Updates as needed will appear in the NVFC Report.
Questions or follow-up, you may also contact me directly at 314-709-0760 or keith.smith@warrenton-fire.org
Thanks!