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Controversial OSHA regs may fall within Midnight Rules scope


A legislative effort to amend the Congressional Review Act could impact some of the more controversial regulations adopted by the U.S. Occupational Safety and Health Administration last year, but the effort may stall in the Senate.

The Midnight Rules Relief Act passed the U.S. House of Representatives by a 238-184 vote on Jan. 4, but no action has been taken in the Senate since Jan. 5, when the bill was referred to the Committee on Homeland Security and Governmental Affairs. The legislation would amend the Congressional Review Act to allow Congress to pass resolutions rolling back multiple midnight rules issued at the end of a presidential term.

The bill could basically allow Congress to overturn resolutions in bulk rather than one at a time per the current Congressional Review Act, which can be time-consuming, said Punam Kaji, a Houston-based attorney with Haynes & Boone L.L.P. If the bill is adopted, one resolution could overturn the previous six months of regulatory rules at agencies such as OSHA, she said.

“I think that’s a brash way of doing things, but it will be interesting to see if that ever does pass,” Ms. Kaji said.

Todd Logsdon, a Louisville, Kentucky-based partner at Fisher Phillips, called Senate passage of the Midnight Rules Relief Act “a big if” because the Senate has several other priorities to contend with such as confirming President Donald Trump’s picks for labor secretary and Supreme Court justice.

However, if the bill is passed, legislators could target controversial OSHA rules such as its electronic recordkeeping rule, which was criticized for the agency’s plan to post employer workplace injury and illness data to a public website and for its stance against blanket post-incident drug testing policies, he said.

“It seems that people have the most heartburn about that one,” Mr. Logsdon said. “That one’s far enough back in May (2016) so it wouldn’t be affected under the current version of the Congressional Review Act. This Midnight Rules Relief Act would have to get passed to reach back that far.”

The agency’s silica rule could also be potentially vulnerable if the new bill is adopted, he said.

The electronic record-keeping and silica rules are not subject to the Congressional Review Act, but the Trump administration could take other actions to undercut these regulations, said Deborah Berkowitz, senior fellow with the National Employment Law Project in Washington.

“Rules that they can’t get rid of very easily, you can see them delaying implementation dates,” she said. 

Under the Congressional Review Act, the legislature can review agency rules adopted during the previous 60 legislative days, meaning only a select few OSHA regulations are currently in danger of being overturned. This includes the Volks rule, which clarifies that employers have a continuing obligation to make and maintain an accurate record of each recordable injury and illness for five years. The House voted 231-191 to adopt a resolution of disapproval targeting the rule and it is now awaiting Senate action, with the Trump administration issuing a statement of administration policy on Feb. 28 indicating its support.

A coalition of 76 organizations sent a letter strongly opposing the Volks resolution Monday to Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., chair and ranking member, respectively, of the Senate Committee on Health, Education, Labor and Pensions.

“For 45 years, OSHA has enforced that companies have to keep accurate records,” Ms. Berkowitz said. “OSHA’s a small agency. It would get to companies about once every 140 years unless they have lots of fatalities or amputations. They depend on companies to keep accurate records and, of course, the threat of fines and citations is a meaningful and important nudge to make sure employers do this right.”

Other OSHA rules that fall within the current review window include the beryllium rule, which the Trump administration has already proposed delaying for the second time but which Ms. Berkowitz said “was not controversial at all.”

The walking-working surfaces rule, more commonly known as the slips, trips and falls rule, also falls within the Congressional Review Act review window, but is generally not expected to be targeted.

“My take is the walking-working surfaces rule is less likely to be impacted because industry didn’t really complain about that one,” Mr. Logsdon said. 



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