With the upcoming transition to President Elect Trump what will the effect be on OSHA? In keeping with his promise to roll back government restraints on American businesses, Donald Trump has chosen Andrew Puzder for Secretary of Labor.
Puzder has been an outspoken opponent of President Obama’s executive orders and initiatives that arguably overreach executive authority, and his views of making America a more business-friendly environment appear to closely mirror Trump’s campaign trail promises. Undoubtedly, the appointment of Pudzer will usher in a more business-friendly Department of Labor, but the extent of the anticipated declawing of OSHA will be interesting to follow in the coming months and years.
Below are the few ways in which OSHA could likely change under the Trump administration:
OSHA Enforcement vs. OSHA Assistance
During the years of the Obama administration, OSHA concentrated efforts on enforcement activities and public shaming of employers, reallocating OSHA assistance positions to enforcement officer positions. During the Trump administration, it is expected that OSHA may ease back into more of a compliance assistance role, which may include reallocating a portion of OSHA’s staff away from enforcement activities. Enforcement activities are important and will always be present, but under the Trump administration’s influence, we should expect to see fewer cases of OSHA publicly shaming employers before the employer can answer the charges levied against them.
Industry and business groups have launched numerous criticisms, and even lawsuits to limit the Silica rule that is said to be overly burdensome and virtually impossible to follow. The Trump administration could potentially open the rule making process for the Silica standard and revise it, but don’t expect the Silica standard to go away altogether. The 60-day time limit for the Congressional Review Act (CRA) to allow lawmakers to intervene has expired. The CRA normally enables lawmakers 60 legislative session days to overturn a regulation.
Walking Working Surfaces
On November 17th, OSHA unveiled the update of the Walking-Working Surfaces Standard, shoe-horning in the revised rule during the final months of the Obama administration. The new Trump administration could review the new rule, or it could be subject to the Congressional Review Act (CRA).
Occupational Injury and Illness Recordkeeping
The regulation included provisions to prohibit employers from discouraging workers from reporting injuries and illnesses, bringing into question forms of safety incentive programs, post-incident drug testing, and the like. The 60-day time limit for CRA to permit lawmakers to consider taking action with this regulation has expired, but legal efforts could further stall implementation of the rule. Although the new regulation won’t fully go away, the Trump administration could possibly influence its revision.
Injury & Fatality Reporting Rule
Beginning January 1, 2015, OSHA’s updated injury & fatality reporting rule became effective, lowering and expanding the trigger threshold to contact the agency for certain incidents. For example, an employer used to be required to contact OSHA if three or more workers were hospitalized as a result of a single incident. Now the requirement is to notify OSHA if a single worker is hospitalized (as in-patient) as a result of a work-related incident. The reporting clock starts when any member of management learns (or should have learned) of the reportable injury or fatality. The Trump administration will be looking at this rule closely to explore possibilities to limit its scope.
In August of 2016, OSHA increased financial penalties on employers by nearly 80%. Serious violations that used to represent a maximum penalty of $7,000 each are now $12,410 each. Willful or repeat violations leapt from $70,000 each to $124,709 each. OSHA’s penalty increase won’t likely go away since the change was part of a statute, but the Trump administration may stifle the automatic increase in maximum penalties each year.