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Proposed OSHA standards languish under Trump administration

Posted On: Jun. 14, 2017 7:00 AM CST

Proposed workplace safety and health standards that the U.S. Occupational Safety and Health Administration has been urged to pursue are facing an uncertain, and possibly unlikely, fate amid the Trump administration’s deregulation push.

OSHA had several actions in the proposed rule stage under the Obama administration, including an infectious disease standard that would require employers establish a comprehensive infection control program and implement control measures to protect employees from exposures to pathogens, according to the Fall 2016 Unified Agenda.

To date, the Trump administration has not published a spring Unified Agenda, which reports on regulatory and deregulatory activities under development for the coming year, and an OSHA spokesperson did not respond to a request for comment.

The potential infectious disease rule was probably the furthest along in the regulatory pipeline, said Jordan Barab, OSHA’s former deputy assistant secretary under the Obama administration and publisher of the Confined Space safety and health newsletter in Washington.

“Infectious disease is something I think is very important, given the emerging diseases that are out there and the fact that OSHA really only regulates bloodborne pathogens,” he said.

Several OSHA actions were in the prerule stage, meaning the agency was considering taking action.

In the last weeks of the Obama administration, OSHA announced it would commence rule-making for a federal standard to protect health care and social assistance workers who are disproportionately affected by workplace violence. In 2015, there were more than 11,000 violent incidents against employees in the sector — a number that is nearly as high as all other industries combined. 

In December, the National Advisory Committee on Occupational Safety and Health recommended that OSHA pursue a formal rule-making for an emergency responder preparedness program standard — an effort that gained new momentum after the April 2013 death of 12 emergency responders in an ammonium nitrate explosion in West, Texas. 

Potential revisions to OSHA’s process safety management program standard last year successfully navigated through the Small Business Regulatory Enforcement Fairness Act review, which is designed to give small businesses more influence over development of regulations, while a combustible dust standard for general industry was in the prerule phase and scheduled for SBREFA review in October 2016.

Unfilled assistant labor secretary slot stalls momentum

Any lack of movement on these standards is partly due to the fact that no assistant secretary of labor has been nominated to replace David Michaels, who held the position during the Obama administration and was the driving force behind the agency’s silica, electronic record-keeping and beryllium rules. In addition, regulations often take two to six years — and sometimes decades — to research and develop before they get to the publication phase.

However, President Donald Trump’s two-for-one executive order on regulations, which states that an agency may issue a new regulation only if it rescinds at least two existing regulations to offset the costs of the new regulation, is raising questions about whether these initiatives will see the light of day.

The Trump administration will “not have much of an appetite” for promulgating new rules, as demonstrated by the executive order and comments made in February by White House Chief Strategist Stephen Bannon about the deconstruction of the administrative state, said Eric Conn, chair of the OSHA workplace safety group for law firm Conn Maciel Carey L.L.P.

“The focus of this new administration is on deconstruction, not construction, so I would be terribly surprised to see any of these rules advance from where they are now,” he said.

And the Department of Labor, which finally got a new leader when Secretary Alexander Acosta was confirmed in late April, is still trying to develop its administrative and legal stances on OSHA’s silica, electronic record-keeping and beryllium rules — all of which were adopted in the last year of the Obama administration and are facing legal challenges.

“I think until there is a confirmed assistant secretary for OSHA, there won’t be any new rule-making initiatives moving forward, unless there is a court order,” said Margaret Seminario, director of safety and health at the AFL-CIO union in Washington. “Without question, there’s going to be a much bigger push for deregulatory activity. All of that has to go through a process, and we will be opposing it and hopefully stopping efforts to roll back these rules. But a lot of the energy is going to be directed toward that rather than toward moving forward to develop protections that are needed and are broadly supported. Both the emergency preparedness and the rule under development for workplace violence — these are areas that need attention, but it’s going to be very difficult to push forward with new protections, particularly in this political environment.”

Pessimism about health sector’s workplace violence standard

Public comments on the health care sector workplace violence standard were due on April 6, but even some die-hard supporters are pessimistic about its prospects.

“It’s not good,” Bernie Gerard, vice president of the Emerson, New Jersey-based Health Professionals and Allied Employees Local 5091 union, said of the standard’s future. “The Trump administration is either in the process of overturning or delaying OSHA regulations that were enacted at the end of Obama’s administration. Health and safety regulations are being eroded at every level in this new administration.”

Supporters of action to address workplace violence in the health care sector are looking to states to fill the void, as California has done in adopting the first state-level standard.

“We have not seen in any other state yet a comprehensive standard being put forth,” said Gerard Brogan, an Oakland, California-based registered nurse and lead nursing practice representative for the California Nurses Association and National Nurses United. “We’re hoping the California standard will help knock that set of dominoes down.”