Reeling In OSHA -Trump’s Effect On The Agency
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.
By, Robert Box
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.
These are ways in which OSHA may likely change under the Trump administration:
- Respirable Silica Standard
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 Standard
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
OSHA announced a phased-in regulation of recording injuries and illnesses online to begin in 2017.
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.
Employers are now also required to notify OSHA for amputations (and partial amputations) as well as complete loss of at least one eye.
Employers are required to report events to OSHA involving in-patient hospitalization, amputations, or the loss of an eye within 24 hours. Fatalities are to be reported within eight hours.
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.
- OSHA Penalties
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.
- Severe Violator Enforcement Program (SVEP)
Expect the Trump administration to look closely at this one. The SVEP program started in 2010 to focus, according to OSHA, “enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees.”
On the surface, the SVEP program appeared to be a good idea, but the Trump administration will likely revise it to some extent because the rule arguably sidesteps basic constitutional rights.
Presently, an employer can be entered into SVEP at the beginning of an OSHA case, prior to any due process for an employer who is presumed guilty and who hasn’t had the opportunity to defend itself.
Presently, getting out of SVEP is virtually impossible. The employer must be in SVEP for a minimum of three years and complete a list of obligations. If, during the three-year period, OSHA issues at least one citation for a serious violation, the three-year clock starts again.
Given the ease with which OSHA can issue serious citations, this alone could confine any employer in the SVEP indefinitely with repeated visits from the agency.
Even if the employer somehow completes all SVEP obligations and avoids OSHA citations for three years, the employer could still be kept in SVEP at the sole discretion of the OSHA Regional Administrator.
The Trump administration will likely not only look for ways to refocus SVEP to ensure it truly concentrates on penalty-deserving employers, but also reexamine who is on the present SVEP list to determine how they were included in the program.
- 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.
Safety First Consulting is a contributor of SM Corridor News and helps businesses identify OSHA compliance issues in their workplaces, manage their safety programs, and we become accountable for the results. In addition to offering custom written safety programs for companies, Safety First Consulting provides required safety training, industrial hygiene sampling, noise sampling, and workplace inspections. You can read more from Robert Box under Business.
