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Washington Update: Obama’s second term: Staying the course?

December 1, 2012

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By Kyle W. Morrison, senior associate editor

For people curious about what occupational safety and health enforcement will look like during President Barack Obama’s second term, his first term may offer a clue.

During the first Obama administration, OSHA was noted for increased enforcement activities and higher penalties, but also slower-than-hoped issuance of new regulations. This is unlikely to change, some experts suggest.

“We’re likely, for a while, to see a continuation of the enforcement initiatives, but probably not much new in the way of standards and regulations,” said Frank White, global director for Mercer ORC HSE Services in Washington, after Obama’s Nov. 6 re-election. White attributes this approach to high unemployment figures as well as the perception – accurate or not – that additional regulations could adversely affect job creation or the economy.

However, several rules could be ready to move forward, according to Jackson Lewis LLP attorney and former OSHA lawyer Brad Hammock. “They’ve done a lot of background legwork on a number of different rules,” Hammock said. “A lot of that stuff is ‘on the shelf,’ so it can be easily put forward.”

The rules include an update to the Crystalline Silica Standard, which has been under review by the White House for nearly two years, and the Injury and Illness Prevention Program Standard.

Although these rules or others may not be finalized in the next four years, Hammock said the headwinds that slowed the rulemaking process during Obama’s first term – a troubled economy and risk of political backlash – have lessened due to an improving economic outlook.

Such reasoning gives AFL-CIO Director of Safety and Health Peg Seminario hope that the rulemaking process will pick back up. “There’s been essentially a regulatory pause that’s taken place. With election mode over, we expect these rulemakings will move forward,” she said.

Seminario pointed out that OSHA under previous administrations – including those of Jimmy Carter and George H.W. Bush – was capable of issuing regulations expediently. Hammock noted that in more recent years, the agency has not been successful at managing multiple major rulemaking initiatives. And White suggested the agency may take a more targeted approach by focusing on one rulemaking at a time, leading to slow – but steady – movement on the standards-development front.

This presents a conundrum: If OSHA were to focus on one standard, the result could be similar to that of the unpopular, ill-fated Ergonomics Standard of the early 2000s. However, attempting multiple standards at once is challenging and slow.

It will be a difficult balance for the agency, said White, who added that OSHA could be well-suited to work collaboratively with labor and industry on some of the major initiatives, including I2P2 and permissible exposure limits.

On the Hill

Hopes that the election might bring legislative changes to OSHA – whether by strengthening or weakening the agency’s enforcement powers – were likewise dashed following the results of the House and Senate races. Although billions of dollars were spent during this election, the makeup of Congress next year will be the same as this year: Democrats controlling the Senate and White House, and Republicans controlling the House.

Given the toxic environment on Capitol Hill during the past two years, it will be difficult – but not impossible – to move forward on legislative changes, according to Seminario, who said progress would depend on the “tone” and whether members of Congress are interested in dialogue.

Still, with all the other priorities facing Washington these days – such as the national deficit and impending “fiscal cliff” – occupational safety and health will not be a priority, White claims.

“I think the chances of any legislative initiatives relating to safety and health are slim to none,” he said. “It’s just not going to be on anybody’s radar screen, and it’s certainly not going to be feasible in a divided Congress.”

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.

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