by Avi Meyerstein
Husch Blackwell LLP is an IMA B2B Partner
OSHA is surely bracing for new oversight as the new Congress gets down to business. Who will be the key players? What oversight and enforcement pressures will OSHA face? New people, new priorities, and new legislative initiatives are already here.
With the Democrats re-claiming the majority in the House, the new Chair of the Education and Labor Committee, Rep. Bobby Scott (D-Va), identified improvements in workplace safety as one of the Committee’s top priorities. The Committee’s Oversight Plan for the 116th Congress reflects this.
The players take the field – most of them
Advising the Committee on its oversight and investigation efforts will be OSHA veteran Jordan Barab, former Deputy Assistant Secretary for OSHA from 2009-2017, who resumes the role of Senior Policy Advisor to the Education and Labor Committee that he held in 2007-09.
Barab has been tapped to develop legislation to promote worker safety and to lead House committee investigations, including reviewing OSHA’s enforcement of worker safety regulations. He has been critical of DOL actions during the current administration, including changes to beryllium regulations and injury and illness record-keeping rules.
For its part, OSHA is also trying to hire leaders who can implement its mission and who will have to deal with congressional oversight. On February 11, 2019, OSHA hired a new chief of staff, Krisann Pearce. As a former general counsel of the House Committee on Education and Workforce (as it was known under the GOP-controlled House), she is familiar with the intersection of OSHA and congressional oversight.
However, OSHA still remains without an Assistant Secretary of Labor to lead it. On February 27, 2019, the Senate Health, Education, Labor and Pension (HELP) Committee again approved nominee Scott Mugno for consideration by the full Senate. His nomination has been placed on the Senate calendar, “[s]ubject to nominee’s commitment to respond to requests to appear and testify before any duly constituted committee of the Senate.”
Legislative activity is already underway
Already, House members of the Education and Labor Committee have introduced or re-introduced a number of bills in the 116th Congress to expand and strengthen OSHA enforcement:
- Expanding the OSH Act. Rep. Joe Courtney (D-CT) re-introduced the Protecting American’s Workers Act (H.R. 1074), which says that it aims to update and modernize the OSH Act, expand coverage to more employees, protect whistleblowers, increase monetary penalties, and impose criminal penalties as a deterrent.
- Restoring the Obama administration record-keeping rule. Rep. Andy Levin (D-MI), Vice-Chair of the House Education and Labor Committee, introduced H.J. Res 44, which would restore the Obama-era OSHA injury and illness record-keeping rule (the Trump administration recently rolled back key parts of the rule). At the heart of the debate is whether employers should have to submit their detailed injury and illness records to OSHA every year and whether the records would be publicly available.
- Developing a workplace violence rule. Frustrated that OSHA has not developed a workplace violence prevention standard for healthcare industry workers, Rep. Joe Courtney also introduced the Workplace Violence Prevention for Health Care and Social Services Workers Act (H.R. 1309). The bill seeks to compel development of an OSHA workplace violence rule.
While these legislative initiatives may not be likely to pass the Senate or receive presidential signature, they are good indicators of where the House is focused on workplace safety issues, especially as House committee members prepare to flex their oversight and investigation muscles.
The call for oversight is coming from outside Congress, too. In a January 25, 2019 letter, the DOL-OIG announced it has begun an expanded audit of the integrity of the DOL rulemaking process and compliance with rulemaking procedures under the Administrative Procedure Act. The outcome of the audit could become a factor in House oversight about OSHA enforcement and rulemaking practices.
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