On the one hand, candidate Donald Trump decried government regulations. On the other hand, he promised to be a friend to workers (and not killing or injuring them is certainly the friendly thing to do). So how exactly do those two promises play out when it comes to OSHA?
In the last year of the Obama administration, OSHA enacted two controversial regulations: silica and electronic reporting of injuries.
Congress won’t be able to overturn them using the Congressional Review Act because time will have run out. The CRA requires Congress to act within 60 legislative days of when regulations are issued.
To change or throw out these regulations, it would be necessary to go through the same rulemaking process that was used to create them in the first place, a process that takes years.
But rules face court challenges. What might happen if a new administration no longer defends these regulations in court? Answer: The regulations could just be left to die.
Regarding the limitations on drug testing and safety incentive programs that current administration wants to enact as part of the recordkeeping regulation, those provisions could be open to re-interpretation by the new administration.
The recordkeeping regulation says employers can’t retaliate against an employee for reporting an injury. The Obama administration has interpreted that to mean that drug testing and incentive programs can’t dissuade employees from reporting injuries. The Trump administration could have a different interpretation.
Another part of the recordkeeping regulation that has caused particular distress to employers is the provision to post companies’ injury records online.
Of course, OSHA will need a mechanism to do that, including the necessary webpages. What if these pages just aren’t built? Companies would still have to turn over these records to OSHA, but they might be saved the shaming of having them posted online. Once again, this matter could end up in court if groups sue the government to fulfill the requirements of the regulation.
As far as regulations already somewhere in the pipeline: Expect the new administration to review these measures, further delaying if not outright canceling their implementation.
Less enforcement?
The number of federal OSHA inspections has decreased in recent years and is likely to continue to do so for two reasons.
The agency’s budget could be cut further.
And Republican administrations have traditionally placed more emphasis on compliance assistance programs than enforcement.
Fatalities and other catastrophes will continue to bring OSHA inspectors to companies’ doorsteps. But it’s important to note that even under the current administration, OSHA is having a difficult time keeping up with amputation cases under newer reporting requirements. Many companies don’t even see an OSHA inspector when an employee has suffered an amputation, although the agency is in contact with the companies via oral and written communication.
A few final thoughts
What to do about OSHA will be overshadowed by what to do about the EPA. Despite President-elect Trump’s general opposition to government regulations, I’ve yet to find any specific mention he’s made about OSHA. EPA and the questions about climate change are another story, however.
As is usually the case with changes of administration, OSHA is likely to have an interim administrator (a high ranking, non-political staffer within the agency) until at least late summer if not fall of 2017. This could further stall any major changes within OSHA.
And if there’s one thing this election has shown, it’s that predictions are … just predictions. Along the way we’ll get some more clues as to what might happen regarding OSHA: who the head of the Department of Labor will be, then potential nominees to be OSHA chief. But when it comes right down to it, all we can do is watch and wait.
We’ll have updates for you here at Safety News Alert.
What do you think will happen to OSHA in the new administration? What are your hopes for the agency? Let us know in the comments.
