Big Changes Coming For OSHA, But What Kind of Changes?

lifeline-osha-2Let’s get this over with quickly.   What will OSHA be like under a Trump Administration?  The answer is I don’t know.  No one knows.  Probably Donald Trump doesn’t know.

A new administration has about 4,000 jobs to fill and neither the campaign or the transition has involved much of a focus on OSHA or workplace safety.   We do know that, as a fundamental principle, the new administration wants to scale back rules that may stifle business. However, Trump’s immigration comments seem to indicate that his focus in the labor department will be on visa issues, not workplace safety.

A former OSHA administrator Ed Foulke has offered up a list of OSHA issues he thinks the administration may look at in an article in EHS magazine:

  1. Walking-Working Surfaces Standard

  2. Respirable Silica Standard

  3. Recording and Reporting Occupational Injuries and Illnesses

  4. Whistleblower Statutes

  5. Increased OSHA Penalties

  6. OSHA Enforcement

  7. Non-Company Personnel Participation in OSHA Inspections

  8. Restroom Access for Transgender Workers

  9. Increasing Compliance Assistance

  10. Filling Empty Seats on The Occupational Safety and Health Review Commission

That is a full and ambitious list.  Personally, I don’t see the changes being that earth-shattering and I don’t think is Mr. Foulke is suggesting that.  Big agencies move like ocean liners.  They don’t get moving quickly, but, once started, they are hard to turn around.  Rules that have already been issued probably don’t change.

Silica and Injury Reporting: However, it is very possible that the administration could change the course of the silica standard and the injury and illness reporting rule.  Both are unpopular, confusing and are under litigation. If the administration weighs in against them in court, it would carry a lot of weight.

Whistleblower Protection: While the new rules on whistleblower protection for workers may be unpopular with this administration, but it is the kind of hot-button issue that Congress generally tries to avoid.

Increased Fines: Similarly, I don’t see the administration rolling back the increased OSHA penalty schedules.  First, they were passed under a Republican Congress just last year.   Second, violators never make sympathetic victims.  Finally, and most importantly, the first rule of fines is they never go down.

Ken’s Fearless Predictions: If I can pull out my own crystal ball, my prediction is that the major change in OSHA is that it OSHA’s basic philosophy toward industry changes immediately after Inauguration Day.   OSHA has historically had a poor record for finalizing regulations through the maze of industry opposition.  Current Administrator David Michaels has greatly increased OSHA’s use of field directives, letters of interpretation, and aggressive inspection findings to toughen enforcement without passing regulations.   In one bit of bureaucratic slight of hand, OSHA published a database of dozens of chemical permissible exposure limits (PELs) based on industry standards and government recommendations.  It is a valuable tool, but it bypassed the entire regulatory process with its public debate and expert review.   Another big, long-lasting change has been to expand the used of the General Duty Clause to hold employers responsible for a number of hazards not defined by regulation.

No doubt, Dr. Micheals takes pride in his ability to raise the safety bar in spite of a regulatory process that in many ways doesn’t work.   However, the next Administrator is unlikely to be so aggressive and may try to reverse the process.

Bottom Line: So it is very likely that what distinguishes Donald Trump’s OSHA will be its silence. Very few regulations, very few new initiatives and a lot lot less of the Name and Shame approach which found the head of the agency announcing big fines against violators.

Many in industry will love that.  The danger is that a spike in accidents and injuries could be a lasting legacy that will spur a future ramp up of the very programs this administration is trying to back away from.

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