By Adele L. Abrams, Esq., CMSP
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 four 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).
Several more rulemaking actions are at the final rule stage (including walking/working surfaces fall protection requirements, expansion of the statute of limitations for recordkeeping violations, 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. Finally, the president had enacted numerous Executive Orders, some affecting workplace safety and health (including one that would debar federal contractors with a history of willful OSHA violations), that President-Elect Trump has vowed to repeal within his first 100 days.
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While candidate Trump declared that, as president, for every new regulation adopted two old regulations would be rescinded, as a practical matter that may be easier said than done.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.
As a practical matter, there is unlikely to be a confirmed Assistant Secretary of Labor for OSHA for quite a while. First, Trump will have to nominate and obtain Senate approval for a new Labor Secretary, before moving to the next tier of appointments. In the interim, a career OSHA official will likely serve as “acting” assistant secretary during the first year of the new administration and my prediction is that the rulemaking agenda will be basically frozen in place until a new chief is on the scene.
The combustible dust rule, which will greatly impact the pallet industry, was poised to undergo small business review in early 2017 but that step requires OSHA to release a draft rule publicly. It is safe to anticipate that the combustible dust rulemaking, already quite contentious, will stall once again as it has since 2009. However, while this rulemaking has been pending, OSHA actively inspects worksites for combustible dust hazards and can issue citations for housekeeping problems, fire hazards, or under the General Duty Clause (in part by referencing NFPA Standard 652 as making combustible dust a “recognized hazard” with a “feasible” means of control).
The once-shining star of the OSHA regulatory agenda – the “I2P2” rule (injury/illness prevention program) – had already been moved to the back burner according to the Spring 2016 regulatory agenda, and now has fallen off the stove entirely. In its place, OSHA recently finalized revised “Safety & Health Management Program” guidelines that are voluntary. However, historically, OSHA has often included adoption of these provisions as part of corporate-wide settlement agreements, which makes such programs an enforceable part of abatement requirements. Look to see more of these types of settlements in the next administration, since these deals are typically negotiated between employers and career OSHA personnel at the local area level.
Some initiatives that squeaked in under the wire, such as the electronic recordkeeping/anti-retaliation rule and the respirable crystalline silica standard, are already in litigation between industry and OSHA and there are a few options that the new administration could take to kill or delay these rules. The FY 2017 spending bill for the Department of Labor was never enacted (the fiscal year started October 1, 2016) and funding for OSHA has been through a continuing resolution. When the lame duck Congress reconvenes before year’s end, it is possible that “riders” could be attached to any final funding package, prohibiting OSHA from spending funds to enforce either rule.
The e-recordkeeping rule’s whistleblower provisions are currently slated to take effect on December 1, 2016, while the data reporting requirements kick in on July 1, 2017.
Both of those deadlines could be voluntarily pushed back by OSHA, or the “new” OSHA attorneys could withdraw the agency’s current objection to injunctive relief sought in the pending litigation, and allow the law to be stayed pending final resolution. The federal government attorneys could also be instructed not to vigorously defend the litigation or to enter into a settlement that is favorable to industry’s position on each standard (e.g., eliminating some provisions entirely). One of the most disputed portions of this rule was the provision that OSHA has interpreted as barring post-accident drug tests unless impairment of the injured worker is believed to be a causal factor in the incident. OSHA could simply change its interpretation of this provision and eliminate the controversy in that manner.
On August 1, 2016, OSHA civil penalties were hiked by 80 percent, to a new high of $124,709 for willful and repeat violations, and to a maximum of just over $12,000 for serious and other-than-serious citations. This occurred through a hidden provision in the 2015 debt reduction bill that appears to have slid by many members of Congress. Congress could seek to undo this increase, which was formalized by OSHA through a rulemaking, but that is not likely to be a high priority at the present time. More likely is that Congress will eliminate the planned “cost of living” increases that would occur each year thereafter.
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-sized employers to get involved. While I do not expect to see the dozen or more National Emphasis Programs (including the one on combustible dust) dissolved immediately, there will no doubt be scrutiny of the longer-running initiatives to see if they have been effective, and these may be replaced 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. Many have been critical of OSHA’s expansive definition of “amputation,” which has triggered thousands of reports that OSHA must analyze and often deploy inspectors for investigation. These severe injury reports have consumed massive OSHA enforcement resources and a new administration could find better uses for its inspectorate using its prosecutorial discretion. 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.
Finally, any “OSHA Reform” legislation in 2017 will be quite different from the Democrat-sponsored “Protecting America’s Workers Act.”
The PAW Act, technically still pending before Congress, would have increased OSHA criminal penalties, strengthened whistleblower protections, and expanded OSHA’s jurisdiction to include public sector worksites (among other provisions). A Republican version is more likely to see avenues for proactive initiatives such as third-party audits in lieu of OSHA inspections, or other incentives for employers to go beyond minimum compliance, or more use of negotiated rulemaking in the future.
The only thing certain, at this point, is that a change is going to come!
(Article published in PalletCentral Magazine, November-December 2016)
Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and provides safety training and consultation. The Law Ofice of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV.