The apron of a commercial airport is a fast paced, dynamic environment that can be a challenging place to work. In the controlled chaos of an aircraft departure or arrival, injuries to ground crew can happen in the blink of an eye.
According to the Flight Safety Foundation, approximately 27,000 ramp incidents and accidents take place worldwide each year, resulting in approximately 243,000 injuries, a rate of 9 injuries per 1,000 departures.[1]
Putting aside issues of liability, questions arise over which agency – OSHA (Occupational Safety and Health Administration) or FAA (Federal Aviation Administration) – has jurisdiction over the workplace conditions of people who work in close proximity to airplanes on the ground.
This issue has practical consequences over which agency’s standards and regulations govern the occupational safety of rampers such as cargo handlers, fuelers, loaders, caterers, marshallers, and maintenance workers.
The answer may seem simple when stated at a high level: OSHA has jurisdiction over the occupational safety of ground personnel unless the FAA exercises jurisdiction over a specific function pertinent to their workplace conditions. When applied to specific situations, however, the answer becomes more complicated. This is because FAA safety or operational regulations may have an incidental impact on workplace activities of ground personnel, thereby causing OSHA workplace regulations to be preempted.
OSHA Jurisdiction
OSHA’s general statutory authority over the occupational safety and health of employees is not unlimited. [2] The Occupational Safety and Health Act of 1970, Public Law 91-596 (OSH Act) allows other federal agencies to preempt OSHA’s jurisdiction over workplace conditions:
"Nothing in [the OSH Act] shall apply to working conditions of employees with respect to which other Federal agencies … exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." [3]
For preemption under Section 4(b)(1) of the OSH Act to apply, three conditions must be met:
- the other federal agency must “possess the statutory authority to regulate the cited condition,”
- “have taken some action to exercise that authority by promulgating standards or regulations having the force and effect of law,” and
- the other agency’s regulation must cover the working conditions at issue.[4]
FAA Jurisdiction
The Federal Aviation Act of 1958, as amended, empowers the FAA to promote the safe flight of civil aircraft and authorizes it to prescribe “regulations and minimum standards in the interest of safety” for, among other things, the inspection, servicing, and overhaul of aircraft; maximum hours or periods of service of employees of air carriers; and other “practices, methods, and procedure” the FAA finds necessary for safety in air commerce and national security.[5]
The FAA regulates the activities of holders of certificates issued by the FAA, which can include airlines; individual “airmen” such as pilots, mechanics, and air traffic controllers; product manufacturers; and authorized repair stations. The FAA does not directly regulate the activities of non-certificate holders, such as airport companies in the business of moving baggage on the ground, caterers, etc. Such entities and their employees can nevertheless become indirectly subject to FAA requirements if they contract to perform services for a certificated entity like an airline. In such instances, pertinent regulatory obligations of the airline, usually set forth in manuals accepted by the FAA, would flow down to the contractor.[6]
The FAA has asserted broad jurisdiction over standards and regulations affecting occupational safety and health of aircraft crewmembers. In a Notice issued in 1975, the FAA stated that its “safety regulatory responsibilities directly and completely encompass the safety and health aspects of aircraft crewmembers” and:
"With respect to civil aircraft in operation, the overall FAA regulatory program ... fully occupies and exhausts the field of aircraft crewmember occupational safety and health."[7]
The Notice addressed the workplace environment of crewmembers of aircraft “in operation,” which was defined as the time from which the 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.[8]
Notably, the FAA did not express an intent to regulate all aspects of workplace safety related to aircraft on the ground. In 1999, the FAA held a public meeting to receive comments on a variety of workplace-safety topics, including on whether the working conditions of ground service employees should be included in a future rulemaking.[9]
The result of this effort was not a new FAA rulemaking but engagement and coordination with OSHA about jurisdiction over the workplace conditions of aircraft crewmembers.
FAA and OSHA Memoranda of Understanding
In August of 2000, the FAA and OSHA issued a joint Memorandum of Understanding (MOU) concerning workplace health and safety in aviation.
The MOU noted that it was important for the two agencies to work together to ensure that “one agency does not unnecessarily block the application of the other agency’s regulations,” and stated that “FAA and OSHA wish to clarify that FAA’s 1975 Federal Register Notice affected only the application of OSHA requirements to the working conditions of employees on aircraft in operation.”
The MOU also stated that, with respect to “other aviation industry employees, such as maintenance personnel and ground support personnel, OSHA has been enforcing, and will continue to enforce, OSHA requirements to the extent allowed under Section 4(b)(1)” of the OSH Act.
OSHA and the FAA agreed that they would establish a procedure for “coordinating and supporting enforcement of the OSH Act with respect to the working conditions on aircraft in operation (other than flight deck crew) and for resolving jurisdictional questions.” [10]
The two agencies established a joint team to consider whether and under what circumstances OSHA requirements could apply to working conditions of employees on aircraft in operation other than aircraft crew. The team issued a preliminary report in 2000,[11] and a dialogue between OSHA and the FAA continued for several years thereafter. In 2012, the FAA issued a draft Policy Statement indicating that the FAA had not exercised its authority to regulate all working conditions affecting aircraft cabin crewmembers that are not flight crew. The Policy Statement was finalized in 2013.[12]
In August of 2014, the FAA and OSHA entered into a second MOU, which established that OSHA standards concerning “hazard communication, bloodborne pathogens, and noise apply to the working conditions of aircraft cabin crewmembers while they are on aircraft in operation (except for flight deck crew).”[13]
Neither of the two MOUs between FAA and OSHA addressed jurisdiction over the working conditions of ground personnel.
Section 4(b)(1) Preemption
The question of whether the workplace safety of a particular ground employee is preempted by FAA regulations requires a case-by-case analysis under Section 4(b)(1) of the OSH Act.[14]
Although the FAA and OSHA have historically coordinated over the issue of jurisdiction with respect to crew members on aircraft in operation, they have not done so with respect to ground personnel. The FAA is considered to have statutory authority to regulate working conditions of an airline’s ground personnel if it chooses to do so.
The Agency does not, however, regularly exercise that authority — at least not directly. When the FAA regulates the performance of certain workplace activities for reasons related to the safety or security of passengers or equipment, it may end up regulating working conditions of ground employees. Examples of reported decisions in which FAA regulations were found to preempt OSHA jurisdiction include the following:
- An airline mechanic was injured while performing maintenance when flaps on an airplane retracted. The airline’s maintenance manual required the airline to lock out the flaps during maintenance, but the airline did not adequately implement the procedure. The Occupational Safety Health Review Commission (OSHRC), found that OSHA jurisdiction over the condition was preempted because (i) FAA regulations required the airline to develop its maintenance manual, which was subject to FAA disapproval; and (ii) the manual contained a mandatory procedure to lock out the flaps when performing maintenance.[15]
- An airline complied with FAA regulations requiring it to prevent unauthorized access to aircraft by locking doors from the passenger lounge. A U.S. Court of Appeals held that the FAA security regulations preempted OSHA regulations that required the doors to be kept unlocked to allow egress in the event of fire.[16]
These examples demonstrate the particularized nature of the inquiry that takes place in a preemption analysis under Section 4(b)(1). There is no general industry exemption from OSHA workplace standards for airport ground workers.
Discussion and Conclusion
OSHA jurisdiction over workplace conditions may be preempted when another federal agency has statutory authority to regulate workplace conditions and chooses to exercise that authority.
The FAA and OSHA have an agreement in which the FAA maintains jurisdiction over airline flight crew members while OSHA has limited jurisdiction over certain aspects of workplace conditions of other crew members onboard aircraft. Outside of that agreement, OSHA maintains jurisdiction over the occupational safety of ground personnel unless the FAA has exercised jurisdiction over a function pertinent to their workplace conditions. Although the FAA avoids directly regulating workplace conditions of airline employees other than aircraft crewmembers, various regulations directed at the performance of technical functions by ground personnel could amount to regulation of their workplace conditions.
Therefore, it is possible that some activities of ground personnel who are airline employees or contractors to an airline performing functions in accordance with the airline’s processes could be subject to FAA requirements that impact workplace conditions, particularly where the FAA regulates pertinent aspects of the workplace condition at issue.
A particularized inquiry is required to determine whether FAA jurisdiction preempts OSHA’s with respect to specific workplace activities of ground personnel.
About Our Author
Paul Alp is the co-leader of the Adams and Reese Aviation and Aerospace Team. His practice, spanning more than 25 years, lies at the intersection of aviation regulatory, legal, and technical issues. Paul represents and advises airlines, manufacturers, repair stations, on-demand operators, technology companies, insurers, commercial space companies, corporate flight departments, and uncrewed aircraft companies on international and domestic aviation and aerospace issues.
Notes
[1] Flight Safety Foundation, Ground Accident Prevention (GAP), available at flightsafety.org/toolkits-resources/past-safety-initiatives/ground-accident-prevention-gap.
[2] See 29 U.S.C. § 651 et seq.
[3] 29 U.S.C. § 653(b)(1).
[4] Secretary of Labor v. Henry Marine Serv., Inc., 2019 WL 1977302 at *3 - *4 (OSHRC Mar. 12, 2019), citing Tidewater Pacific Inc., 17 BNA OSHC 1920, 1923 (No. 93-2529, 1997) and Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235 (2002).
[5] See 49 U.S.C. § 44701.
[6] In the event of such a flow down to a non-certificated contractor, the airline retains responsibility for performance from an FAA regulatory perspective (e.g., in the event of a noncompliance caused by the contractor, the FAA would pursue enforcement action against the airline and not the contractor).
[7] Notice, Occupational Safety or Health Standards for Aircraft Crewmembers, 40 Fed. Reg. 29,114 (July 10, 1975).
[8] Id.
[9] See Notice of Public Meeting and Request for Comments, Occupational Safety and Health Issues for Airline Employees, 63 Fed. Reg. 56,275 - 56,276 (Oct. 19, 1999).
[10] Memorandum of Understanding between the FAA and OSHA, Safety and Health in the Aviation Industry (August 7, 2000).
[11] First Report, FAA/OSHA Aviation Safety and Health Team, Application of OSHA’s Requirements to Employees on Aircraft in Operation, (Dec. 2000).
[12] Occupational Safety and Health Standards for Aircraft Cabin Crewmembers, 78 Fed. Reg. 52,848 (Aug. 27, 2013).
[13] Memorandum of Understanding between FAA and OSHA, Occupational Safety and Health Standards for Aircraft Cabin Crewmembers (August 26, 2014).
[14] See, e.g., OSHA Legal Interpretation, Review of Policy on Section 4(b)(1) of the Act (Jul. 10, 1989) (“4(b)(1) situations must be considered on a case by case basis and deference given to a sister agency’s interpretation of its authority.”)
[15] Secretary of Labor v. Northwest Airlines, Inc., OSHRC No. 13649, 1980 WL 121045 at *11 (Sep. 3, 1980). According to the OSHRC, under Section 4(b)(1) of the OSH Act, these facts precluded OSHA from citing the airline “with respect to any hazards arising from such activities.” Id.
[16] U.S. Air, Inc. v. Occupational Safety and Health Review Comm’n, 689 F.2d 1191 (4th Cir. 1982).