Donald Trump
Photo: Michael Vadon

OSHA under Trump: A closer look

Legal experts are predicting significant changes for worker safety regulation under the new administration

January 29, 2017

A new presidential administration almost certainly will mean a new direction for OSHA, legal experts agree. Regulations could be undone. Funding could decrease. Strategies for worker safety could shift 180 degrees.

How soon will changes arrive? Which objectives will take priority? Who will next be chosen to lead OSHA? Those decisions ultimately lie with President Donald Trump and his team as they settle into the White House.

“Even if it wasn’t Trump, just having a Republican in office would have been a substantial change by itself,” said Mark Kittaka, a partner and administrator of the Labor and Employment Law Department at Barnes & Thornburg LLP in Fort Wayne, IN. “Because it’s Trump, it’s going to be even more. It definitely will change.”

On the campaign trail, Trump touted his belief in smaller government with fewer rules and more freedoms. He vowed to eliminate two regulations for every new one enacted. He promised to ease the burdens on big businesses and blue-collar workers alike by stimulating the economy and creating jobs.

Workplace safety did not take center stage as a campaign issue for Trump or any other presidential candidate. But Trump’s limited-regulation stance, coupled with his experience in construction and other industries, suggest to some that he will steer OSHA more toward compliance assistance and away from enforcement.

Trump offers the unprecedented case of an incoming commander-in-chief who has been fined multiple times by OSHA for safety violations at his worksites. His businesses also have relied on contractors and subcontractors who have been hit with major penalties. One of his contractors was fined $104,000 after a construction worker fell 42 stories to his death in 2008 at the Trump SoHo hotel condominium in New York City. The penalty was later reduced to $44,000.

“Typically, OSHA is not the highest priority agency or one of the agencies that gets a lot of attention early in an administration,” said Eric J. Conn, a founding partner of Washington-based Conn Maciel Carey LLP and chair of the firm’s OSHA Workplace Safety Practice Group. “I think this could be a unique new administration that does pay some amount of attention to OSHA in the early days because he’s familiar with it.”

Once Trump turns his attention toward OSHA, what specifically could change?

Regulations in jeopardy

The injury and illness electronic recordkeeping rule could be among the first items that Trump targets, according to Conn. The rule requires many employers to electronically submit injury and illness data, which may then be published on OSHA’s website. Anti-retaliation protections also are included in the rule, which prohibits employers from discouraging workers from reporting an injury or illness.

The rule has drawn sharp criticism from some employers, who claim it is burdensome and unnecessary. In July, eight industry groups – including the National Association of Manufacturers and Associated Builders and Contractors – filed a legal challenge to block the rule, claiming the anti-retaliation provisions unlawfully banned or limited safety incentive programs and post-incident drug testing. A judge denied the motion in November.

“I could easily see, at the very least, a Trump administration curbing the publishing of that data,” Conn said. “And the other side of that same rule is the anti-retaliation elements that would prohibit some post-incident, post-injury drug testing and safety incentive programs. I could see that rule being curbed.”

A formal rulemaking process often requires years to enact change, but Trump could turn to faster, existing methods. OSHA could issue new guidance documents or letters of interpretation that reopen the door for drug testing and safety incentive programs, for example. Or the administration could pursue a budget rider that says OSHA shall not spend any funds on implementing the electronic recordkeeping database or in collecting or reviewing employers’ injury and illness data submitted pursuant to the rule – effectively invalidating its existence. Depending on the timing, some rules could be changed under the Congressional Review Act.

The silica rule published in March 2016 could be on the chopping block, Conn said, but as of press time it is set to go into effect in the construction industry in June and for general industry in 2018. The rule reduces the permissible exposure limit for respirable crystalline silica to 50 micrograms per cubic meter of air averaged during an 8-hour shift – half the previous limit for general industry and five times lower than the previous limit for construction.

Also in jeopardy is the so-called “blacklisting rule” published in August, which requires firms seeking to do business with the federal government to report previous labor-law violations. Meanwhile, ongoing but incomplete efforts such as the combustible dust rule and process safety management reform are unlikely to advance during the Trump administration.

However, not every regulation will be scrapped.

“Worker safety regulations as a general matter are not likely to disappear – OSHA and its regulations have been around for a long time and have survived administration changes,” said Aimee Delaney, a partner specializing in labor and employment at Hinshaw & Culbertson LLP in Chicago. “Additionally, Trump’s victory was in no small part due to his appeal to the Rust Belt, blue-collar workers, so taking too aggressive an approach may conflict with the pro-employee message that helped win the election.

“However, less regulation is certainly something Trump campaigned on, and OSHA presents an area with a great deal of regulation.”

How soon could changes take place?

“During the George W. Bush administration, it was two or three years before you saw the ship really turn in a very significant way from the Clinton administration,” Conn said. “I don’t think you’re going to see overnight a dramatic change in the way OSHA operates, but by the end of four years, you will see a markedly different approach by the agency with a different set of tools than we’re seeing at the end of the Obama administration.”

NEXT PAGE: Philosophical shift from enforcement to compliance assistance>>

Philosophical shift

Delaney expects OSHA to shift from an enforcement-based strategy toward more compliance assistance – the opposite of what was seen during Former President Barack Obama’s eight years in office.

“A policy example of this in action may see the Severe Violator Enforcement Program, which created OSHA’s ‘bad actor’ list, taking a back seat to the Voluntary Protection Program,” Delaney said.

In general, OSHA funding tends to increase under Democratic administrations and decrease under Republican administrations. Trump’s team also could change the way OSHA spends its money, for example, by reducing the agency’s enforcement budget. Kittaka said the new administration could decrease the number of higher-fine, repeat violations by shortening the time frame under scrutiny to three years from five years.

OSHA, the Environmental Protection Agency and the Department of Justice have collaborated in recent years to pursue individual indictments and prosecutions related to alleged worker safety crimes. Conn said a new attorney general – combined with newly appointed U.S. attorneys – could prompt a return to the previous approach, with far fewer worker safety criminal investigations and prosecutions.

Likewise, OSHA’s strategy of “regulation by shaming” through the use of negative press releases is also likely to be reduced or eliminated. The approach was common under the previous OSHA team, which filled its website with press releases that called out violators and demanded corrective actions.

Kittaka, who represents employers, said his clients are optimistic that the Trump administration could usher a business-friendly climate in which worker safety remained a priority.

“For the most part, I think employers are trying to do the right thing,” Kittaka said. “Nobody wants to hurt their employees. You’re going to have some bad apples out there that will get hit – and should – if they really are endangering their employees. But for the most part, employers lose money because of lost-time injuries. That’s not what they want to do. Most companies are trying to produce a product. There’s no evil intent.”

Conn agreed, saying his employer clients are “cautiously optimistic” that the business environment will improve. However, he has heard from safety professionals who are worried about how Trump might affect their mission.

“A lot of safety professionals are able to use the threat of significant enforcement to get their own issues prioritized by management,” Conn said. “I suspect, and I have heard from a fair number of safety directors, safety managers, corporate safety directors, that they are concerned that safety might become less of a priority to senior management if it is less of a priority to the regulator.”

A look back

After eight years in office, Former President Barack Obama and his administrative team no longer play a role in workplace safety regulations. Workplace fatalities increased to 4,836 in 2015, which marked the highest number since Obama took office, according to the Bureau of Labor Statistics. OSHA’s budget has held steady at about $552 million in recent years.

President Barack Obama

During his tenure, Obama often turned to Executive Orders in order to establish new rules. President Donald Trump could use the same process to undo Obama’s actions.

Secretary of Labor Thomas Perez

Perez was sworn in as labor secretary on July 23, 2013. He was a strong proponent of paid family leave and oversaw efforts to increase civil penalty amounts for labor violations.

OSHA Administrator David Michaels

Michaels left his post in January as the longest-serving administrator in OSHA history. He pushed for rules to protect temporary workers, non-English-speaking workers and others with high rates of injury and illness.

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