The dust has barely settled from the most contentious presidential election in history, and it is clear that big changes are in store for regulation and enforcement by the Occupational Safety & Health Administration (OSHA) in the next 4 years. Under President Obama, a number of regulatory initiatives were brought to fruition, including a crystalline silica rule, confined space in construction, and electronic submission of injury/illness data (and its companion provisions making retaliation against workers under Section 11(c) of the OSH Act a citable offense punishable by a maximum $124,709 penalty).
FINAL RULES
Two of these 2016-issued final rules—crystalline silica and e-recordkeeping—are still in litigation. The question is whether a Trump justice department will defend the OSHA standards as vigorously as those attorneys currently engaged in the cases, and whether the agency will be quick to cut a deal, perhaps delaying effective dates or repealing some of the more onerous provisions.
Even after the election, on November 18, 2016, OSHA issued yet another final rule, setting new requirements for walking and working surfaces/fall protection in general industry. This rule, with an estimated economic impact of more than $300 million per year, sets new specifications for portable and fixed ladders, scaffolds, and personal fall arrest systems, and takes effect on January 17, 2017—just 3 days before President Obama leaves office. Will this rule be rescinded by the next Congress under the Congressional Review Act, in the same way the OSHA ergonomics standard was killed by President Bush after similarly being issued as a “midnight rule” in the waning days of the Clinton administration? Stay tuned!
Several more rulemaking actions are at the final rule stage (including expansion of the statute of limitations for recordkeeping violations, and a new health standard for beryllium) and could still be completed before the White House changes hands on January 20, 2017. In addition, there are quite a few other action items on the regulatory agenda (combustible dust, modification of process safety management requirements, infectious disease control, I2P2) that were in progress but could not be completed during the Obama administration.
EXECUTIVE ORDERS
Finally, the president had enacted numerous Executive Orders, some affecting workplace safety and health (e.g., E.O. 13650, which triggers the EPA Risk Management Plan update and OSHA Process Safety Management and explosives standards ongoing rulemaking efforts) that President-Elect Trump has vowed to repeal within his first 100 days. In particular, the Safe Workplace and Fair Pay Executive Order especially affects construction contractors who do federal public works projects, as it would debar federal contractors with a history of willful or repeated OSHA violations, or violations of employment/labor laws such as civil rights protections, wage/hour or Davis Bacon Act requirements. These regulations also are subject to possible rescission under the CRA, particularly if the Executive Order that serves as their underpinning is stricken.
TRUMP ADMINISTRATION
What can we expect from OSHA under a Trump Administration? The short answer is “Expect the Unexpected.” While candidate Trump declared that, as president, for every new regulation adopted two old regulations would be rescinded, as a practical matter that may be easier said than done. Each employer could probably point to a few OSHA rules that they would like to see evaporate, but there may not be unanimity on which regulations are “excessive” and OSHA cannot easily repeal standards for which it documented a need without providing something else with equivalent protection. For years, OSHA has been engaged in a broad-ranging Standards Improvement Project, to update outmoded references in some rules or get rid of them entirely. Much of the low-hanging fruit may have already been plucked.
On the other hand, Congress is likely to entertain regulatory reform legislation that could make it more difficult for OSHA to enact any new rules at all, as they might be required to undergo congressional review as well as OMB clearance (of course, this does raise some constitutional separation of powers issues!). Congress can also put strings called “riders” on OSHA funding, to preclude further work on selected standards (effectively killing them outright or delaying them until the next Democratic administration) or refusing to fund enforcement of specific rules already enacted (e.g., the e-recordkeeping rule).
As a practical matter, there is unlikely to be a confirmed Assistant Secretary of Labor for OSHA for quite a while as that is not historically treated as a priority appointment for Senate confirmation and the Secretary of Labor must first be selected and confirmed. In the interim, a career OSHA official will likely serve as “acting” assistant secretary during the first year of the new administration and OSHA’s rulemaking agenda will be basically frozen in place until a new chief is on the scene and a 4-year strategic plan can be developed.
HOW WILL OSHA OPERATE
More generally, in terms of how OSHA will operate, it is likely that we will see a shift away from prioritizing enforcement and standards-setting and back toward the alliances, partnerships, and compliance assistance outreach activities that were favored in the George W. Bush administration. There could be some great opportunities for NWPCA if this comes to pass.
Additionally, instead of discouraging employers from seeking Voluntary Protection Program (VPP) status (or finding ways to kick existing VPP sites out of the program), OSHA may restore funding to that program and encourage more small and medium-size employers to get involved. While the dozen or more National Emphasis Programs currently running will not be shut down immediately, there will likely be phase-out of the older NEPs, perhaps replacing them with new initiatives aligned with the priorities of the new OSHA leader.
Other things that could be affected include the scope of the “severe injury reporting” rule for that required reports to OSHA within 24 hours of in-patient hospitalization, amputation and eye loss, to narrow the definition of “amputation.” The SVEP initiative (Severe Violator Enforcement Program), in place since 2010, which focuses on “employer shaming” through OSHA press releases and on follow up inspections of additional worksites of companies that are categorized as safety scofflaws, could also grind to a halt, or be retooled in a significant way.
The only thing certain, at this point, is that a change is going to come! ■
About the Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a nine-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
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Modern Contractor Solutions, November 2016
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