Unheard Worker Safety Appeals Loom If Review Panel Goes Dark

The Senate has a month to confirm a commissioner to the independent agency that hears appeals to OSHA citations before decisions in nearly three dozen workplace safety cases are postponed indefinitely.

The term for the US Occupational Safety and Health Review Commission’s sole commissioner, Chair Cynthia Attwood, is set to expire in late April. The agency has operated for nearly two years without a quorum, meaning it’s been unable to decide cases where an employer or the Labor Department’s Occupational Safety and Health Administration disagrees with a decision by an OSHRC administrative law judge.

President Donald Trump on Monday sent the nomination of Jonathan Snare to be a new OSHRC commissioner to the Senate—which is scheduled to work 12 days in April. Even if Snare is confirmed, the White House would still need to nominate two more people or renew Attwood’s term to get OSRHC out of the limbo that’s left at least 32 cases languishing.

The US Department of Labor recently announced Snare’s appointment as deputy solicitor of labor. Snare also used to work at the DOL for six years, serving in several roles including acting assistant secretary for OSHA. The White House didn’t respond to multiple requests on whether the administration will fill the three-member panel.

Failure to fill these vacancies properly would mean the loss of a critical step in the workplace safety appeals process and could harm both OSHA and private businesses, attorneys said. It also would mark another move by the Trump administration to weaken the power of certain federal agencies.

“This is a piece of the dismantling of the federal system of dispute resolution, and it’s highly troubling,” said Michael Felsen—a retired Department of Labor Boston regional solicitor. “None of these systems are perfect, but they’re at least an attempt at even-handed justice based on serious people’s understanding of the law.”

Growing Backlog

The White House hasn’t signaled Attwood’s term would be renewed. The Senate confirmation process generally takes weeks and requires vetting.

OSHRC is independent of the Department of Labor and is intended to provide timely adjudication of workplace safety disputes between employers and OSHA.

A review commission ALJ’s decision becomes a final order that can proceed to a federal appeals court unless it’s directed for review by one of the three commissioners. As of February, there were 32 ALJ decisions awaiting a commission decision, with some pending since 2021.

But going straight to that appellate option would mean OSHA, employers, and federal judges would lose out on critical specialized knowledge that commissioners provide, safety lawyers said.

House Democrats raised concerns last December about the growing backlog of cases since employers aren’t required to fix hazards until their case is final. “Each case that is allowed to languish represents one or more workplaces in which employees may be in real danger of harm,” the lawmakers said.

Katherine A. Tracy—chief counsel to chairman Attwood—declined to comment on whether the White House has indicated any plans of renewing chair Attwood’s term and referred questions about plans for new nominations to the White House.

Vacancy Dilemma

OSHRC was intended to have at least three commissioners, with a maximum of two from any single political party. It’s rarely operated with none.

The commission operated with fewer than three-panel members 75% of the time over the past five years, according to Heather MacDougall—a former OSHRC chair.

“It’s a disservice to those parties who have been waiting for the review commission to take up their case,” MacDougall said in response to the more than 30 cases awaiting a quorum for review. “It doesn’t really match with the review Commission’s mission of being a fair and expeditious resolution of contested cases.”

Former President Joe Biden attempted to fill two vacant seats during his term, but the Senate didn’t hold a confirmation vote for either. Amanda Laihow—one of those appointees—now serves as the deputy assistant secretary for OSHA.

The last time OSHRC operated with no commissioner was during a brief two-month period in the early ‘90s when the term of a previous commissioner overlapped with that of the confirmation of another.

Attack on OSHRC

The looming commissioner vacancies come as OSHRC faces a legal attack on its constitutionality.

It’s among several agencies hit with a swath of legal challenges following last year’s US Supreme Court decision in SEC v. Jarkesy. That ruling held that defendants have a constitutional right under the Seventh Amendment to a jury trial when the SEC seeks financial remedies.

Kenric Steel LLC—a New Jersey-based steel fabrication company—sued OSHRC last September to block enforcement of a $348,000 safety fine against it. It argued the appeals process is unconstitutional because OSHRC’s leadership panel is illegally shielded from being fired at will by the president, and because the agency’s judges are improperly appointed and protected from removal.

OSHRC along with other independent adjudicative bodies serve as conscientious decision-making processes, Felsen noted.

“To throw all of these things out, if that’s ultimately what’s going to happen, is really going to create chaos,” he concluded.