Trump’s Potential Impact on OSHA

President-Elect Trump is preparing to take office in a few weeks.  Many employers and employees are predicting how the new Trump administration could affect many different areas involving labor and employment law in the United States.  Let’s take a look at some of the predictions regarding some of the ways President-Elect Trump could change the course of both current and pending OSHA regulations, including the OSHA administration as a whole.

On his website, Trump lays out his overall vision for business:

  1. Ask all department heads to submit a list of every wasteful and unnecessary regulation which kills jobs, and which does not improve public safety and eliminate them.
  2. Issue a temporary moratorium on new agency regulations that are not compelled by Congress or public safety.
  3. Decrease the size of our already bloated government after a thorough agency review.

Some believe Trump could also limit OSHA’s enforcement ability by cutting their budget without changing any regulations.  This is a tactic used by President Ronald Reagan in the 1980s.  Some of the specific regulations that the administration could target include the following:

Electronic Recordkeeping/Non-Discrimination Provisions

These new regulations require electronic submission of OSHA logs, incident reports and annual summaries for larger employers but they also implemented controversial bans on blanket, post-accident drug testing as well as financial safety incentives. This is currently being challenged in a lawsuit focusing on the illegality of the non-discrimination provisions of the new rule. On Nov. 28, 2016, the judge denied the business groups’ Motion for Preliminary Injunction. However, the judge stated that while it denied the Motion for Preliminary Injunction based on the failure to establish irreparable harm, it was not an indication of who will prevail on the merits. Even without the injunction, this dispute will continue into the Trump administration. President-elect Trump could direct the Department of Justice to discontinue the fight, which could result in a victory for the challenging business groups.

Recordkeeping as a Continuing Violation

The White House Office of Management and Budget is currently reviewing a new proposed change to OSHA recordkeeping regulations that says an employer has a continuing duty to create accurate records of employee work-related injuries and illnesses. This could effectively change the statute of limitations for recordkeeping violations from six months to five years and six months (five years is the length of time employers must maintain OSHA 300 logs).  If issued during the remaining days of the Obama Administration, this could be subject to a Congressional Review Act challenge by the Republican-controlled Congress.

Silica

OSHA’s new silica rule issued in March 2016 has been challenged in a number of lawsuits which have been consolidated in the D.C. Circuit. The rule set the permissible exposure limit (PEL) for airborne crystalline silica of 50 micrograms per cubic meter of air (50 µg/m3) for general industry, construction, and maritime employers. This represented a 50 percent reduction for general industry and an 80 percent reduction for the construction and maritime industries.  Industry groups challenge the economic and technological feasibility of the rule as applied in the foundry, hydraulic fracturing, and construction industries. Since the petition for review of the final rule will not be fully briefed until the end of March 2017, this is another case where the Trump administration could decide to discontinue the fight in court.  This could, in turn, result in the invalidation of the regulation altogether.

 During previous Republican administrations, there was more emphasis on employer education and the Voluntary Protection Program (VPP).  Some also believe Trump could focus the agency on more safety enforcement, such as machine guarding, lockout/tagout, etc., rather than regulations.