Recent workplace regulations proposed or enacted during the Obama administration may be reversing course in the near future.
Many important issues took center stage during the 2016 election, from terrorism to international trade, but workplace safety was not a dominant talking point (nor was it in most presidential elections in modern history). However, it may be safely assumed that the new administration’s campaign promise to jumpstart the economy by reducing regulation will have a significant impact on the workplace in general and OSHA in particular. Although a deregulated workplace is to be expected from the latest pendulum swing back to a Republican administration, this transition may not be as predictable as with previous transfers of power. For instance, Trump’s strong campaign appeal to blue-collar workers could constrain widespread deregulation at the expense of workplace safety. Trump is also no stranger to OSHA issues because of his experience in real estate ventures that have seen contractors investigated and cited by OSHA (most notably a 2008 construction death involving a subcontractor at the Trump SoHo in New York). The KRCL Nonsubscriber Blog will keep you updated on how these issues unfold over the next for years, but for now, the following are just a few changes that may be on the horizon:
New Recordkeeping Rule on Shaky Ground
A May 12, 2016 final rule, codified at 29 C.F.R. 1904, creates new greater requirements for reporting and publishing data on injuries and illnesses and includes stronger anti-retaliation protections to encourage reporting. Before the rule, employers were already prohibited from retaliating against an employee who reports an injury, but OSHA could only act if the employee filed a complaint with OSHA within 30 days of the retaliation. The new rule allows OSHA to act without a formal complaint. The rule also adds new language to existing reporting provisions to require a “reasonable procedure for employees to report work related injuries and illnesses promptly and accurately.” This provision has been criticized as vague, but OSHA has already issued one Guidance Memorandum to assist with its interpretation, available at: https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html
Several industry groups filed a legal challenge to block the rule last year, but United States District Judge Sam Lindsay of Dallas ultimately denied the industry plaintiffs’ request for preliminary injunction in November of 2016. The new rule became effective January 1, 2017, but the legal challenge to the rule is ongoing. With the new administration, we may expect a less vigorous defense to legal challenges of the rule or lax enforcement if it is ultimately upheld.
During Obama’s second term, OSHA increased its enforcement of repeat violations by looking back to the previous five years to see if any employer had been cited for the same or substantially similar conditions. OSHA had also begun treating all workplaces of a single corporate family as a single workplace for the purpose of determining previous violations. Under Trump, OSHA may revert to the previous enforcement regime in which it considers different workplaces individually (even if run by the same company), and only looks back to the previous 3 years to determine whether there have been any similar violations in each individual workplace.
Less Enforcement, More Compliance Assistance
Overall, OSHA under the Obama administration focused on enforcement rather than compliance assistance by allocating more resources towards inspections and citations, which led to a significant increase in repeat violations and enforcement actions generally.
Edwin Foulke, former OSHA head under President Bush, believes that the new administration will slow the recent revamp in enforcement and focus on “compliance assistance and partnership and alliance programs,” which was the case when he led the agency.