The leaderless U.S. Occupational Safety and Health Administration has charted a middle course under the Trump administration to date, not moving to overturn major regulations adopted under the Obama administration, and in some cases defending these rules in court, but also working with the employer community to revise these rules to ease compliance, according to legal experts.

With Scott Mugno’s nomination as assistant secretary of labor for OSHA in limbo in the U.S. Senate, Deputy Assistant Secretary of Labor for OSHA Loren Sweatt is running the agency on an acting basis.

“Typically, individuals who are not confirmed by the Senate tread a little bit more lightly, not going to make any broad program changes, and I think she’s stayed with that typical standard,” Amanda Walker, an Atlanta-based partner in the OSHA workplace safety practice group for law firm Conn Maciel Carey L.L.P., said during a webinar Tuesday.

There have been “quite a few” retirements among OSHA leadership both in the federal and regional offices in the last year and those positions remain unfilled, with the agency having 119 fewer career staff and compliance officers since the beginning of the Trump administration due to a hiring freeze, but now actively recruiting to add 40 to 50 new compliance officers, she said.

“That’s a pretty dramatic decrease when you’re dealing with an agency that has national jurisdiction and a little over 2,000 employees,” Ms. Walker said.

In February 2017, former White House Chief Strategist Stephen Bannon made promises about the deconstruction of the administrative state, a sharp contrast from the progressive Obama administration, which worked to “aggressively regulate American workplaces” at OSHA, said Kathryn McMahon, Washington, D.C.-based partner in the OSHA workplace safety practice group for Conn Maciel.

“It may be, at the end of the day, that we end up sort of in the middle,” with a “minimalist” approach as opposed to aggressive regulation or a complete deconstruction of the regulatory state at OSHA, she said. “Of course, it’s too soon to tell because of the empty house and the lack of a confirmed permanent leader at OSHA, but it seems to me at least from the key significant actions we’ve seen so far that it is, in fact, a mixed bag. We’re seeing some continuation of what was happening under Obama and we’re seeing some signs that there is going to be a more minimalist deregulatory approach.”

For example, the agency has announced it will engage in a rulemaking to revamp the Obama administration’s controversial electronic recordkeeping rule, Ms. McMahon said.

“My prediction is that (the rule) won’t be completely dismantled,” she said. “But it is going to make changes. We have seen some signs of what might happen. We know that the agency is engaged in a reverse course on one aspect of the E-recordkeeping rule, which is the sharing, making public, of the injury and illness data that has been collected.”

In December, the Trump administration proposed removing the requirement to electronically submit OSHA Form 300, the log of work-related injuries and illnesses, and OSHA Form 301, the injury and illness incident reports. Employers would only be required to submit electronically information from OSHA Form 300A, the summary of work-related injuries and illnesses – a recognition of employer concerns about the ability of the agency, which planned to publish this information on a website, to protect personally identifiable information, as Form 300A does not contain such information, unlike Forms 300 and 301.

“OSHA seems to be changing course on the sharing of that information with the public,” she said. “But we do not expect the whole rule to go away.”

The agency also did not move to withdraw its controversial silica regulation or its opposition to an industry challenge against the rule, despite speculation it would do so under the Trump administration, Ms. McMahon said. In December, the U.S. Court of Appeals for the District of Columbia Circuit rejected industry challenges to the silica rule and ordered the agency to explain why it omitted medical removal provisions.

“Not only did agency not withdraw its opposition, it fought vociferously on behalf of the standard that was issued under the Obama administration that was so controversial … and prevailed,” she said. “A very significant victory in the D.C. Circuit was won by the solicitors on behalf of OSHA. That rulemaking was defended and is now secure – done at the hands of the Trump administration.”

However, OSHA is working with stakeholders to cooperatively develop possible guidance or a revision to the standard to make compliance easier in terms of the engineering controls, Ms. McMahon said.

“Maybe some things are going to change around the edges to make it a little more employer friendly,” she said.

Meanwhile, the agency also has delayed enforcement of its rule lowering occupational exposure to beryllium to May 11. The agency has been “actively engaging” in settlement discussions with industry groups challenging the rule in court, but “we do have the agency not throwing in the towel,” Ms. McMahon said. “They’re defending the standard, but working with some petitioners to develop revisions to the standard that might make compliance somewhat easier.”