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Trump administration may thwart OSHA rules

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The election of Donald Trump will likely lead to changes in strategy at the U.S. Occupational Safety and Health Administration that would be welcomed by many employers.

Employers and their representatives have complained about OSHA’s “aggressive” regulatory agenda under President Barack Obama, but they now envision an aboutface toward a more collaborative approach once President-elect Trump takes office.

The agency has adopted “more of an enforcement mentality” under Obama’s administration compared with President George W. Bush’s, which was more engaged in collaborative partnerships with employers through OSHA’s Voluntary Protection Program and other initiatives, said Patricia Ogden, partner in Barnes & Thornburg L.L.P.’s Indianapolis office.

“It was not as adversarial as it has recently evolved” into, she said.

That more contentious relationship was reflected in OSHA’s regulation-by-publicshaming approach, including its practice of issuing press releases about citations and proposed fines against employers before the appeals process is complete — a practice that could be in jeopardy, replaced by collaborative initiatives such as VPP, said Travis Vance, of counsel in the Charlotte, North Carolina, office of Fisher & Phillips L.L.P.

“I think (Mr. Trump) is going to concentrate more on the consultation side … as opposed to being heavy on the enforcement side,” he said. “You might still see (a press release) in a significant case, but I don’t think you’re going to see as many press releases from fed OSHA.”

Several of OSHA’s recently issued and controversial regulations are likely to be reversed once Mr. Trump takes office, if he follows through on campaign pledges to revoke unnecessary regulations, experts say.

The OSHA rule that could be an immediate target for reversal is OSHA’s electronic record-keeping rule, which would require certain employers to electronically submit injury and illness data that they are already required to record on their on-site OSHA Injury and Illness forms — scheduled to take effect Jan. 1. Employers object to the planned publicizing of these reports and OSHA’s stated resistance to blanket post-accident drug testing policies and employee incentive programs, as outlined in the rule and recently issued guidance.

The agency’s silica rule, published in March, could also be vulnerable because opponents have argued in litigation challenging the rule that OSHA ignored concerns about the technological and economic feasibility of lowering the maximum exposure limits. The rule would reduce the permissible exposure limits for crystalline silica for both construction and general industry employees, requiring some employers to measure the amount of silica workers are exposed to and use dust controls and respirators to protect them from and limit their exposure to silica.

“Silica will be a prime candidate considering the controversy it’s generated among business,” said John Martin, a Washington-based shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. “I think the new electronic record-keeping rule will get pulled back, if not entirely, then I think they will use the power of interpretation and letters of interpretation to scale it back tremendously. Because that rule and its anti-retaliation provisions are conservatives’ classic definition of a nonsense regulation, I wouldn’t be surprised if they actually moved forward with some provision to withdraw that regulation.” 

The Trump administration could push back the effective date of both rules while it pursues an official rule-making process to reverse them, he said. In the case of the electronic record-keeping rule, it also could reinterpret the OSHA guidance to deem blanket post-incident drug testing and employee incentive programs, such as raffles and pizza parties aimed at rewarding employees for no reported injuries and illnesses within a certain time period, as generally permissible, Mr. Martin said.

Experts do not see a total abdication of OSHA’s regulatory responsibilities, with standards governing hazard communication and lockout/tagout requirements to prevent unexpected machinery startups or release of hazardous energy likely safe.

“Absolutely there are regulations that are necessary,” Ms. Ogden said. “Nobody in this field would say differently.”

Margaret Seminario, director of safety and health at the AFL-CIO in Washington, said reversing both the electronic record-keeping and silica rules would not be easy, particularly since both are outside of the Congressional Review Act window (see related story) and would have to undergo a formal rule-making process to be revoked. “You just can’t wave a magic wand and they go away,” she said. “None of these (rules) were done on a whim. We will certainly be doing everything we can to defend these rules.”