Review the case and response below:
The Federal Aviation Administration (FAA) published a Draft Policy Statement on the Occupational Safety and Health Standards for Aircraft Cabin Crewmembers on December 7, 2012. The purpose of this policy is to "enhance occupational safety and health in the aircraft cabin by establishing the extent to which Occupational Safety and Health Administration (OSHA) requirements may apply to the working conditions of aircraft cabin crew while they are onboard aircraft in operation" (DOT/FAA, 2012).
This policy statement was designed to address the problem that FAA's "regulations do not completely encompass the safety and health aspects of the work environments of aircraft crewmembers while the aircraft is in operation, and that there are working conditions for which it has not promulgated occupational safety or health standards. . . . In particular, FAA has not promulgated standards related to the working conditions addressed by OSHA's hazard communications and blood borne pathogens standards" (DOT/FAA, 2012).
However, the FAA has issued numerous regulations directly affecting the workplace of pilots, flight engineers, cabin attendants, and other persons whose workplace is on aircraft in operation. These regulations cover: aircraft performance and structural integrity; safety equipment for emergency ditching and evacuation; fire protection; protective breathing rescue aids; emergency exits used by crewmembers; cockpit lighting; crewmember seat belts; toxicity; noise reduction; smoke evacuation; ventilation; heating and pressurization; maximum hours of duty and duty aloft; and radioactive and other hazardous materials (DOT/FAA, 1975).
Currently, "the FAA exercises statutory authority pursuant to 49 USC section 44701 et seq., governing aviation safety and may issue regulations that are related to flight safety. . . The OSHA exercises statutory authority pursuant to 29 USC section 651 et seq., governing the occupational safety and health of employees" (MOU between FAA and OSHA, 2000).
HISTORY
1975 Federal Register Notice - Occupational Safety or Health Standards for Aircraft Crewmembers:
Title VI of the Federal Aviation Act of 1958 "contains the principal substantive provisions that authorize and require the FAA to promote the safety of civil aircraft operations by prescribing and revising standards, and regulations governing, in the interest of safety, the design and materials, workmanship, construction, and performance of aircraft, maximum hours of periods of service of airmen and other employees of air carriers, and the transportation of dangerous articles. With respect to civil aircraft in operation, the above mentioned safety regulatory responsibilities directly and completely encompass the safety and health aspects of the work environment of aircraft crewmembers. Aircraft design and operational factor are indivisible from occupational safety or health factors insofar as they affect the workplace of those crewmembers. Aircraft design and operational problems affecting the flight safety of crewmembers necessarily affect their occupational safety or health. Regulatory solutions to these problems necessarily involve practices, means, methods, operations, or processes needed to control the workplace environment of aircraft crewmembers."
August 7, 2000 - Federal Aviation Administration/Occupational Safety and Health Administration Memorandum of Understanding (MOU):
The MOU directed that a FAA/OSHA team determine whether certain OSHA requirements could be applied to the working conditions of employees on aircraft in operation (other than flight deck crew) without compromising aviation safety. The MOU also called for a report regarding whether and to what extent OSHA's existing standards and regulations on recordkeeping, blood borne pathogens, noise, sanitation, hazard communication, anti- discrimination, and access to employee exposure/medical records may be applied to employees on aircraft in operation (other than flight deck crew) without compromising aviation safety.
December 2000 - FAA/OSHA Aviation Safety and Health Team First Report:
This report identified several legal, enforcement, compliance, and safety issues that made it inadvisable to recommend that jurisdiction over the working environment (aircraft cabins) of employees on aircraft in operation are granted or ceded to OSHA. The Team recognizes that there is a lack of reliable empirical data concerning the occupational safety and health issues associated with employees on aircraft in operation.
This report also identified matters for further consideration:
• Need to determine the degree to which OSHA Act's territorial limitation to employment performed within the boundaries of the United States would affect OSHA's ability to provide effective protection for a significant percentage of crewmembers who work on flights that operate in part beyond the territorial boundaries of the United States.
• Need to determine whether it would be necessary for the respective agencies to engage in notice and comment rulemaking prior to applying the enumerated OSAH standards or regulations to employees on aircraft in operation, and, if so, the manner in which to most expeditiously promulgate standards that are applicable to aircraft in operation.
• Need to determine the manner in which OSHA and FAA would cooperate to assure that standards applicable to employees on aircraft in operation (other than flight deck crew), which may be promulgated at a future date, would not be written or enforced in a manner that could compromise the safe operation of an aircraft.
• Need to determine the effect that state jurisdiction and state plans would have on FAA's ability to assure aviation safety.
• Need to determine the effect that state jurisdiction and state plans would have on OSHA's ability to enforce standards applicable on aircraft that operate in, and over, a number of States.
• Need to determine and address the potential preemptive effect that FAA regulations and other federal agency regulations and standards may have on OSHA's authority to apply particular OSHA standards or regulations to an aircraft in operation.
• Need to determine whether it would be necessary to conduct OSHA inspections on an aircraft in operation in order to effectively enforce any applicable OSHA standards or regulations, and, if necessary, whether the process of conducting such OSHA inspections would affect aviation safety.
• Need to determine the manner in which OSHA would conduct its inspections on an aircraft in operation in order that such inspections would be conducted in accordance with the delegation authority to the Secretary of Labor under the OSH Act and in order that such inspections to be consistent with the procedures developed in OSJA's Field Reference Inspection Manual.
• Need to determine the method and manner for obtaining FAA approval of any OSHA abatement requirements that potentially affect aircraft safety prior to any abatement action by an employer/airline.
• Need to determine the method and manner in which OSHA inspectors would be trained concerning the application of relevant standards on aircraft in operation and the manner in which inspections would be conducted on aircraft in operation.
• Need to determine the manner and method for conducting outreach programs to airline employers and employees regarding the nature and scope of the OSH Act and any OSHA standards and regulations that may be applicable to aircraft in operation.
• "Under the Team's recommended plan, air carriers would voluntarily enter into an aviation safety and health partnership program (ASHP) with the FAA. This voluntary aviation safety and health program would specify the kinds of occupational safety and health protections air carriers would provide, establish a steering group consisting of members from the FAA, air carriers, and employee unions, and contain evaluation criteria to assert program effectiveness. OSHA would provide technical assistance and program evaluations, as resources allow.
Voluntary occupational safety and health partnership programs have been successfully implemented by OSHA in various industries where
OSHA possesses jurisdiction over the working conditions. Under this voluntary partnership program between air carriers and the FAA over the working conditions of flight attendants on aircraft in operation, FAA retains its complete and exclusive jurisdiction over aviation safety while increasing its role in the safety and health of crewmembers on aircraft in operation (other than flight deck crew). The voluntary partnership program should provide enhanced flight attendant safety and health protections more quickly that if either or both agencies were to engage in rule-making. The program would also preserve the FAA's preeminent authority over aviation safety issues by reserving to the FAA complete and exclusive responsibility for determining whether proposed abatements of safety and health hazards would compromise or negatively affect aviation safety.
OSHA's role in the program will be advisory only. OSHA will provide technical guidance, to the extent resources allow, to the FAA, particularly concerning compliance and evaluation of the program. OSHA will assist the FAA in developing general guidelines as to how to apply the elements of certain OSHA requirements. OSHA will provide protocols to the FAA that will set out the basic elements and criteria of the standards or regulations. Since OSHA does not have jurisdiction over the workplace involved, these protocols suggested by OSHA will be subject to the FAA's approval."
March 24, 2010 - AFA-CW reports passing of FAA Reauthorization Bill with provisions for flight attendants:
"The Association of Flight Attendants-CWA (AFA-CWA) reported on Tuesday that the US Senate has passed a version of the US Federal Aviation Administration (FAA) Reauthorization Bill, containing provisions for flight attendants.
The measures included in the bill that the AFA-CWA supports feature: a follow-up on the results of the FAA flight attendant fatigue study; OSHA workplace safety and health protections; provisions for cabin air quality that would identify equipment and technology available to detect and filter highly toxic contaminants in the air supply; English language standards for flight attendants; and a program called "Return to the Cabin" that would allow flight attendants opportunities for rehabilitation after testing positive for alcohol or drug abuse.
The AFA-CWA represents 50,000 flight attendants at 22 airlines."
November 30, 2012 - Press Release - FAA Proposed Policy to Improve Flight Attendant Workplace Safety:
"The US Department of Transportation's Federal Aviation Administration (FAA), working with the US Department of Labor's Occupational Safety and Health Administration (OSHA), today proposed a new policy for addressing flight attendant workplace safety. While the FAA's aviation safety regulations take precedence, the agency is proposing that OSHA be able to enforce certain occupational safety and health standards currently not covered by FAA oversight. "Safety is our highest priority and that certainly extends to those who work in the transportation industry," said US Transportation Secretary Ray LaHood. "Under this proposal, flight attendants would, for the first time, be able to report workplace injury and illness complaints to OSHA for response and investigation." This policy announced today with the FAA will not only enhance the health and safety of flight attendants by connecting them directly with OSAH, but will by extension improve the flying experience of millions of airline passengers, said US Secretary of Labor Hilda L. Solis. Flight attendant workplace issues could include things such as exposure to noise and blood borne pathogens and access to information on hazardous chemicals. The FAA and OSHA will continue to work to identify additional conditions where OSHA requirements could apply. They will also develop procedures to ensure OSHA does not apply any requirements that could affect aviation safety. Flight attendants contribute to the safe operation of every flight each day," said Acting FAA Administrator, Michael Huerta. "This proposed policy is an important step toward establishing procedures for resolving attendant workplace health and safety concerns." "We look forward to working with the FAA and the airlines to assure the protection of flight attendants," Dr. David Michaels, assistant secretary of labor for occupational safety and health."
December 3, 2012 - US flight attendant union touts OSHA move to up aircraft cabin standards:
US-based flight attendant union The Association of Flight Attendants-CWA said it has successfully achieved Occupational Safety and Health protections for commercial aircraft, aftertireless advocacy to improve safety and health standards in its members' workplace.
AFA said it commends the Obama Administration, the Federal Aviation Administration and the Occupational Safety Health Administration for their collaborative approach to reach the policy statement released last week that will correct a nearly four-decade old exclusion of OSHA in the passenger cabin.
According to the union, in 1975, the US FAA claimed exclusive jurisdiction over workplace safety and health for all crewmembers, preventing OSHA, the agency that regulates the safety and health of most U.S. workers, from protecting Flight Attendants and other crewmembers while working on board commercial airline flights.
AFA said it has pursued legal and regulatory solutions to extend OSHA safety and health protections to workers in the airline industry. Today's FAA policy announcement comes after AFA aggressively advocated for Flight Attendant safety and health protections to be included in the FAA reauthorization bill that was signed by president Obama in February 2012.
Flight attendants currently have OSHA protections at work in places other than where they spend the majority of their time -- the passenger cabin. The new policy statement extends many of the OSHA protections already in place to the aircraft cabin, the union said.
December 7, 2012 - Policy statement on Occupational Safety and Health Standards for Aircraft Cabin Crewmembers (Docket No.: FAA-2012-0953):
The Federal Aviation Administration (FAA) published a Draft Policy Statement on the Occupational Safety and Health Standards for Aircraft Cabin Crew members on December 7, 2012. The purpose of this policy is to "enhance occupational safety and health in the aircraft cabin by establishing the extent to which Occupational Safety and Health Administration (OSHA) requirements may apply to the working conditions of aircraft cabin crew while they are onboard aircraft in operation" (DOT/FAA, 2012).
2012 - Association of Flight Attendants -CWL - FAA Proposed Policy Statement to Bring OSHA to the Cabin
We made history. Four decades after OSHA was created and safety and health protections were extended to the workplace of most Americans, we have finally achieved OSHA protections for Flight Attendants in the aircraft cabin.
The FAA released a policy statement that extends many of the safety and health standards we already have in our workplaces outside the aircraft cabin. This is an enormous achievement and it would not have been possible without the persistent, tireless work of our union.
You were a part of making this happen. For decades AFA has pursued legal and regulatory solutions to extend OSHA safety and health protections to workers in the airline industry. The roadblocks have been enormous, but our union kept this as a priority and through the leadership and dedicated work of our Air Safety, Health and Security Department as well as the grassroots organizing led by our Government Affairs Department and thousands of your calls to Capitol Hill, we succeeded in ensuring that OSHA standards in the cabin were included as part of the FAA reauthorization bill. The bill provided a path, but without our persistence and collaboration with these agencies this policy statement may not have come to fruition. It is our focused and expert work for Flight Attendants that achieved this historical result today.
"Flight attendants are our first responders in the sky, so ensuring a safe workplace for them helps to keep air travel safer for everyone," said Rep. MazieHirono (D-HI), a member of the House Committee on Transportation and Infrastructure and U.S. Senator-elect for Hawaii.
We must also recognize the Obama Administration for making this possible. Obama appointees lifted roadblocks and determined they could work together to address concerns related to the unique conditions of our work space so that safety and health standards could be applied to the cabin. The Obama Administration supported the work between these agencies, as noted in the FAA press release, with the incredibly supportive statements from Department of Transportation Secretary Ray LaHood and Department of Labor Secretary Hilda Solis.
Not all of our members may be aware of how long we have fought to achieve this result. In 1975, the FAA claimed exclusive jurisdiction over workplace safety and health for all crewmembers, preventing the Occupational Safety and Health Administration (OSHA) - the agency that regulates the safety and health of most U.S. workers - from protecting Flight Attendants and other crewmembers while working on-board commercial airline flights.
We are meeting with your AFA local leaders to review what this policy change will mean for us and when we can expect it to take effect. We will keep AFA members closely advised on implementation and what it means for our work place.
Thank you for all you do every day to keep our skies safe.
January 22, 2013 - Policy Statement on Occupational Safety and Health Standards for Aircraft Cabin Crewmembers: Comments of Airlines for America:
Airlines for America ("A4A") submits these comments in response to the request for comments that the Federal Aviation Administration ("FAA") has issued concerning its proposed statement about occupational safety and health standards for aircraft cabin crewmembers. The Draft Policy Statement solicits public comments about the Occupational Safety and Health Administration (OSHA) assuming responsibility for blood borne pathogen, hazard communication and hearing conversation regulatory programs affecting aircraft cabin crew while they are onboard aircraft in operation. It further proposes that such requirements not be incorporated into FAA's regulatory programs but rather proposes that jurisdiction to control and regulate those health and safety programs be transferred to OSHA.
We believe that an alternative approach be used because of important unresolved outstanding issues concerning such an assumption of regulatory authority. The joint FAA/OSHA Aviation Safety and Health Team summarized those issues over a decade ago when it concluded that it had "identified several legal, enforcement, compliance, and aviation safety issues that made it inadvisable to recommend that jurisdiction over the working environment (aircraft cabins) of employees on aircraft in operation be granted or ceded to OSHA. Nothing in the record today suggests that this situation has changed. What has changed, however, is the maturation and potency of voluntary civil aviation safety programs, particularly the Safety Management Systems (SMS). An SMS based approach is, under the current circumstances, the best way to meet FAA and OSHA's commend able policy objectives.
The basic issue that the Draft Policy Statement raises thus is not the importance of occupational health and safety to crewmembers. That is clear and indisputable. Rather, the question is what is the most efficacious means to achieve that goal? We believe that a SMS- based approach is the optimal response.
January 28, 2013 - Carriers Object to FAA's Plan for New Flight Attendant Work Conditions:
Most U.S. airlines are opposing an FAA proposal to give the Occupational Safety and Health Administration (OSHA) some regulatory authority over in-cabin working conditions for flight attendants. Instead, they are advocating a voluntary, data-based program to address the concerns--citing civil aviation's existing Safety Management System as a model--or calling on the FAA to craft more occupational safety standards itself.
Trade group Airlines for America also is suggesting that the OSHA Airline Ground Safety Alliance be expanded to include flight attendant participation.
The FAA proposal, issued in the form of a draft policy statement, would let some OSHA requirements apply to the working conditions of flight attendants while they are on board aircraft in operation. That came in response to the FAA Modernization and Reform Act of 2012, which directed the FAA to develop a policy statement on when OSHA requirements may be applied to crewmembers while working in an aircraft.
Under the proposal, the FAA says OSHA rules would apply in the cabin for areas in which the FAA has not crafted its own occupational safety or health standards. Specifically, those would be standards for blood-borne pathogens, hearing conservation and hazard communication (under which the identities and hazards of chemicals must be made available and understandable to workers).
Additionally, the FAA and OSHA would work on a memorandum of understanding to «establish procedures to identify any additional working conditions where OSHA requirements may apply.»
Responses to the proposal, which were due by Jan. 22, reveal some of the concerns and fears that airlines have about OSHA involvement, as well as how the unions supporting the change believe it should be applied.
Airlines say they are worried about the complexity and burden of having two agencies regulating safety in the same workplace, as well as the potential OSHA inspection of aircraft, which could interfere with operations. In its proposal, the FAA says OSHA "anticipates that it will respond to and investigate complaints or referrals without a need for any inspection of aircraft in operation," but it does not offer guarantees.
Airlines also are concerned that OSHA's involvement could make the airlines subject to multiple, and perhaps conflicting, state rules, because the OSHA Act encourages states to develop and operate their own job safety and health programs, as 26 now do. The Association of Flight Attendants-CWA (AFA) and the Transportation Trades Department (TTD), which includes the AFA among its 31 affiliated unions, also note that concern, but say they are comfortable with the proposed policy's assurances that OSHA will «initiate a process to ensure that airlines will not be subject to multiple different sets of rules as they fly into and out of different states.»
The unions, which have been fighting for OSHA involvement for years or even decades, say there are good reasons to apply the OSHA standards in the categories the FAA proposed.
The blood-borne pathogen and hazard communication regulations will provide better equipment for hazard isolation, cleanup, disposal and personal protection, the unions say, and they
anticipate regular noise exposure monitoring, audiometric testing and hearing protection. TTD cites concerns about fuel vapors and cleaning solution chemicals, and the International Association of Machinists and Aerospace Workers (IAM) believes attendants should be allowed to
wear protective gloves when collecting trash from passengers.
IAM seems to be pushing for the most expansive application of OSHA regulations, suggesting they could be applied for issues such as cabin air quality, lifting and moving of baggage, the operation of aircraft doors and a long-running risk from the "explosion" of inflight coffee makers and water heaters. The FAA issued directives on the latter problem in 1993 and 1994, but the IAM says the problem never disappeared and the FAA issued a safety alert about exploding hot coffee filters a few weeks ago.
February 4, 2013 - NBAA Cautions FAA On Expanding OSHA Policy to Part 91, 135:
FAA's proposed policy to extend the applicability of certain Occupational Safety and Health Administration (OSHA) requirements to aircraft operators carrying cabin crewmembers is raising concerns from business aviation advocates that it could cause confusion and hamper business aircraft operations.
FAA released the proposed policy Dec. 7 at the direction of Congress, saying it would establish a memorandum of understanding with OSHA to identify the areas where OSHA standards would apply.
The National Business Aviation Association says this could cover OSHA standards for recordkeeping, blood-borne pathogens, noise, sanitation, hazard communication, anti- discrimination and medical records access for cabin crewmembers.
But flight attendants are not required in either Part 91 or 135, NBAA notes, saying, «Unfortunately, the FAA's proposed policy raises a number of concerns related to the application of occupational safety and health (OSH) standards to operations not previously covered or even analyzed in the development of those standards.»
The proposed policy specifies that it is applicable to Part 91, 135, 121 and 125, but does not outline how the OSHA regulations would be applied to each of those segments.
"It appears that this proposed policy could apply a number of OSHA requirements to these small- and medium-sized businesses without determining the effect on these entities as required by the regulatory Flexibility Act," NBAA says. "We believe [the proposed policy] could have a substantial impact on our members."
NBAA also questions how it would apply to various states that have opted out of the OSHA standards in favor of their own. Noting operations frequently cross states, the association says it would be unreasonable to require training for every possibility.
"Until the FAA is able to identify a complete list of OSHA standards that would apply and ensure that those standards have considered the regulatory impacts on small businesses, it would be inappropriate to apply this proposed policy to either noncommercial or on-demand commercial operations," NBAA says.
The policy has also drawn objections from commercial carriers, which say they should be able to use data-based voluntary programs in place of some mandatory standards. Labor groups have long been pushing for expansive coverage, to include areas such as cabin air quality, lifting and moving baggage, and operation of aircraft doors to the risk of dangers from cabin equipment.
February 27, 2013 - President of the Association of Professional Flight Attendants (APFA) union, Laura Glading, letter of support to the Honorable Rick Larsen, Ranking Member, Subcommittee on Aviation Committee on Transportation and Infrastructure:
Dear Representative Larsen:
Your comments in your opening statement at this morning's hearing regarding efforts to extend occupational safety and health protections to flight attendants were greatly appreciated. As you know, Flight Attendants have been working on this issue for much too long, and we look forward to working with you on this and other issues important to our profession in the future.
I also look forward to briefing you on the proposed merger of American Airlines and US Airways at your convenience.
Again, on behalf of the over 16,000 Flight Attendants of American Airlines thank you."
QUESTIONS
1. Identify and analyze the main issues of this case study. What are the pros and cons of the FAA implementing this policy? Reference supporting comments for the pros and cons you cite. Comments are located on the Notice of Proposed Rulemaking comment web page: https://www.regulations.gov/#!docketBrowser;rpp=25;po=0;D=FAA-2012-0953;dct=PS