by Eric J. Conn and Micah Smith
Conn Maciel Carey LLP is an IMA B2B Partner
In the final days (and even hours) of the Obama Administration, OSHA promulgated several significant regulatory changes. For example, after several decades, it updated the Walking Working Surfaces Standard (the regulation covering slips, trips and falls). It also published a controversial Electronic Injury Data Submission Rule, two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals. To name a few. But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”?
While some Obama-era OSHA regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promises for deregulation, most have remained untouched. Indeed, when Scott Mugno, President Trump’s nominee for OSHA’s top job, recently announced his decision that he was withdrawing his name from consideration, the likelihood that OSHA would remain without a permanent, appointed leader for the entirety President Trump’s term has increased dramatically, and conversely, without a captain steering the ship, the likelihood of OSHA carrying out the Trump Administration’s plan for major de-regulatory action has dramatically decreased.
Much more likely, OSHA will continue to operate over the course of the next year and a half of the Trump Administration as it has since shortly after his Inauguration – modest de-regulatory efforts to nibble around the edges of Obama-era regulations, but nothing close to the level of radical deregulation that had been advertised on the campaign trail and which we have seen at other agencies. Thus, the “midnight” regulations promulgated at the tail end of the Obama Administration appear likely to remain largely intact.
Early Days De-Regulatory Action — Congressional Review Act
The only truly significant dismantling of Obama-era occupational safety and health regulations occurred immediately after Trump’s Inauguration and were driven by Congress rather than by the White House or OSHA itself. Specifically, shortly after Trump’s Inauguration, Congress invoked its rarely used authority under the Congressional Review Act of 1996 to repeal two controversial worker safety regulations finalized in the final days of the Obama Administration.
In August 2016, the Federal Acquisition Regulation (FAR) Council, in conjunction with the Department of Labor, promulgated a regulation entitled the “Fair Pay and Safe Workplaces Rule,” which established significant disclosure obligations for government contractors and subcontractors, requiring them to report any violations (even alleged violations) under the Occupational Safety and Health (OSH) Act as well as 13 other federal labor laws and corresponding state laws. Given the nickname, the “Contractor Blacklisting” regulation, the FAR rule was deeply unpopular with the regulated industry, including U.S. defense contractors. In March 2017, using its power under the Congressional Review Act, it passed the requisite joint resolution to require the repeal of the “Contractor Blacklisting” regulation, and President Trump signed it into effect.
On the heels of that deregulation, Congress and Pres. Trump used the Congressional Review Act to repeal another controversial Obama-era regulation — commonly referred to as the “Volks Recordkeeping Statute of Limitations Rule.” Pres. Obama’s OSHA promulgated the Volks Rule to try to reverse the D.C. Circuit’s decision in the Volks Constructors case, which overturned OSHA’s historical approach of treating injury and illness recordkeeping violations as “continuing violations” for the entire five year period the records are required to be kept in a file cabinet, and instead holding OSHA to a strict six-month statute of limitations from the day the injury was first due to be recorded. To understand what a big deal this was from an enforcement standpoint, between the date of the DC Circuit’s Volks decision and the promulgation of the Volks Rule, the
number of Recordkeeping violations issued by OSHA dropped by 75%.
Dismantling the Fair Pay and Safe Workplaces regulation and the Volks Rule in the first months of the Trump Administration – albeit accomplished mostly by Congress – was an early sign that controversial regulations promulgated by the Obama Administration were unlikely to survive under Trump and the Republican Congress.
Other De-Regulatory Efforts – Nibbling Around the Edges
However, since those initial months, we have seen very little additional meaningful de-regulatory activity in the area of worker safety regulations, and even less defanging of OSHA in the area of enforcement. In fact, one of the most controversial rules promulgated by Obama’s OSHA was the broad-reaching crystalline silica standard. Rather than attempting to dismantle it, the Trump Labor Department vigorously and successfully defended the regulation in litigation brought by Industry challenging its validity. The standard remains intact and is being enforced by Trump’s OSHA.
The best example of the Trump Admin. nibbling around the edges of an Obama-era OSHA Rule is the modest changes made to the Electronic Recordkeeping Rule. After a couple of years of informal changes, extended deadlines, and industry challenges, OSHA finally rolled out an Amended E-Recordkeeping Rule. However, rather than settling the status of this Rule, the proposal will mire the rule in further controversy. Here specifically is what the new rule changes:
- Amend 29 C.F.R. § 1904.41 by removing the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301; and
- Require employers to submit their Employer Identification Number (EIN) along with the data.
83 Fed. Reg. 36494 (July 30, 2018).
The amended rule left intact the requirement for these large employers and many more smaller employers to annually submit 300A annual summary data. It does not address the Agency’s publishing or sharing the data collected from employers. And even more concerning, the final rule does not disturb in any manner the controversial and duplicative “anti-retaliation” provisions, or the interpretations of those provisions included in the Preamble to the 2016 Final Rule. These are the provisions that endeavored to restrict employers’ authority to discipline employees for late injury reporting or for safety violations, as well as limit employer’s ability to perform post-incident drug testing and to provide safety incentives. The tiny scope of the change means employers’ major concerns with the rule were seemingly ignored, so this proposed revision falls far short of what Industry was expecting. Given President Trump’s commitment to deregulation and clearing unnecessary burdens from employers, the proposed change – which took more than a year to publish – is a major disappointment.
Where the Administration has made efforts to dismantle OSHA regulations in a radical fashion, the Democrats or courts have stymied the Administration’s objectives, as with, for instance, the beryllium construction and maritime standard. One of the first rulemaking activities OSHA engaged in after the Inauguration was a proposal to withdraw the entire suite of ancillary provisions from the newly-minted maritime and construction beryllium rules, promulgated just eleven days before Trump took office in January 2017. The withdrawal of these ancillary provisions would have eviscerated the protectiveness of the regulation according to worker safety advocates. This proposal, however, has been sitting in limbo since 2017. And earlier this month, the Democratic-controlled House of Representatives passed an amendment to the Labor Appropriations bill prohibiting any funds from being spent finalizing the proposal.
OSHA Enforcement on the Rise?
On the enforcement front, no significant shift towards compliance assistance has been felt, as is commonly the case at the switch from a Democratic to a Republican administration. Moreover, confounding expectations, OSHA enforcement has actually been on the rise during the Trump Administration. For example, OSHA’s enforcement budget increased, the number of inspections conducted increased for the first time in years, the size of penalties continue to increase, no significant leveling off of citations characterized as “Repeat” has occurred, OSHA has kept in place every national emphasis program it inherited from the Obama-era, and OSHA set a record during the first year of the Trump Admin. for the most ever $100,000 plus citation packages issued in OSHA’s history.
In sum, after an initial burst of deregulation in the worker safety area immediately following Trump’s Inauguration, Obama-era regulations have essentially been left intact. OSHA has issued a number of interpretations that suggest modest efforts to ease the burden on employers, but a radical deregulatory agenda has not been successfully advanced at OSHA. Without a permanent Assistant Secretary of Labor chosen by Trump in place to lead the Agency, it is highly unlikely we will see any dramatic deregulation at OSHA for the remainder of Trump presidency.
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