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Regulatory pullback on the horizon for OSHA under Trump

Posted On: Aug. 16, 2017 6:00 AM CST

Signs and actions taken to date are pointing to a major pullback in the U.S. Occupational Safety and Health Administration’s regulatory stance under the Trump administration, but there are still plenty of unknowns, according to legal experts.

On Aug. 1, OSHA launched the injury tracking application, a web-based form that allows employers to electronically submit required injury and illness data as part of the compliance effort for its controversial electronic record-keeping rule. But a note on the website on Tuesday said technical difficulties are making some of the ITA pages unavailable.

“We don’t know yet what is going to happen,” Kathryn McMahon, partner in the OSHA workplace safety practice group for law firm Conn Maciel Carey L.L.P. in Washington, D.C., said during a webinar on Tuesday. “The agency had moved forward on this rule to the extent that it had set up this live portal. We don’t know why (the portal is not working). It could simply be some sort of technical issue. It is a government-run program, no offense to the government. You don’t have to be too paranoid or joyous depending on your perspective to wonder whether this was an intentional takedown of this portal. That may be a sign that the agency is planning to do something that would further pull this rule back.”

“We are working on the problem and hope to have the page functional within the next day or so,” an OSHA spokesperson said in an emailed statement.

In late June, the agency set a new Dec. 1 compliance date for electronic data submission after announcing in mid-May that it would delay compliance. However, it also announced plans to issue a separate proposal to reconsider, revise or remove other provisions of the electronic record-keeping rule. 

One of the prime candidates for revision is the regulation’s anti-retaliation provisions, according to experts. The rule bars employers from retaliating against employees for reporting injuries or illnesses and created a new, citation-based pathway against employers who violated the anti-retaliation provisions.

“That rule, unlike everything else, is actually in place,” Ms. McMahon said. “As far as we can tell, the enforcement is happening … but it looks to us based on the anecdotal data we’ve gathered that it’s being enforced only where there is an aggrieved employee. We expect this portion of the rule, because it is highly controversial, I’d say probably even more controversial than the electronic submission, will be dealt with by the Trump administration in some form or fashion.”

The rule does not ban drug testing of employees, but it does prohibit employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses.

“We’ll be watching that one,” said Micah Smith, a Washington-based attorney with Conn Maciel. “We all probably agree that if there’s any movement to be made on rolling back that anti-retaliation rule, that certainly should be a part of it.”

The Trump administration could issue a new letter of interpretation on the anti-retaliation provisions, particularly the drug testing and safety incentive program provisions, Ms. McMahon said.

“The language is very broad and very vague and OSHA has interpreted that language to mean some very specific things with regard to drug testing,” she said. “This may be an area that is particularly ripe for an interpretation that is contrary to the last administration’s interpretation of its own rule.”

The Trump administration published its first Unified Agenda, which reports on regulatory and deregulatory activities under development for the coming year, last month. The agenda listed 14 OSHA standards in either the pre-rule, proposed rule or final rule stages compared to the 30 listed on the Fall 2016 agenda by the Obama administration.

Major regulations such as the combustible dust rule came off the regulatory agenda and others such as a prevention of workplace violence in health care and social assistance and emergency response and preparedness were moved to the long-term actions list, said Amanda Walker, an Atlanta-based partner in the firm’s OSHA workplace safety practice group. But in a “somewhat surprising” move, an update to OSHA’s lockout/tagout standard remains on the agenda, she said.

Mr. Smith predicted a scaling back on the enforcement side, including potential changes to OSHA policies on repeat citations, under the Trump administration. For example, the lookback period for repeat citations was changed from three years to five years under the Obama administration.

“It would be pretty simple to change that to a three-year lookback,” he said.

In addition, he predicted “a little bit less of the proactive targeting” of facilities that have previously been cited for workplace safety violations.

“If you get citations at one facility, historically there was a fairly low likelihood that you would get another visit from OSHA at that exact same facility,” Mr. Smith said. “We saw that change somewhat during the Obama years. We think that will probably flip back the other way.”