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Trump victory puts OSHA rules on unsure footing

Posted On: Nov. 16, 2016 5:00 AM CST

Trump victory puts OSHA rules on unsure footing

The U.S. Occupational Safety and Health Administration’s signature regulatory initiatives of 2016 are likely in jeopardy following Donald Trump’s presidential victory, experts say. 

The OSHA rule that could be an immediate target for reversal is OSHA’s electronic recordkeeping rule, scheduled to take effect Jan. 1, 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. The rule has been controversial from its start in May due to OSHA’s stated resistance to blanket post-incident drug testing, programs that discipline employees for failing to immediately report injuries and illnesses, and certain employee incentive programs the agency believes may discourage reporting.

“I think he’ll work through the agency to revoke that rule,” said Travis Vance, of counsel in the Charlotte, North Carolina, office of Fisher & Phillips L.L.P. “Trump is not going to view that as something that’s crucial to workplace safety. I think he’s going to see that as an additional burden on employers.”

“I just don’t see it ever taking effect under Trump,” Mr. Vance added. 

The agency’s silica rule, published in March after years of delays, also could be vulnerable, experts say. In litigation challenging the controversial rule, opponents argue OSHA ignored concerns about the technological and economic feasibility of lowering the maximum exposure limits.

“That one might be another one on the chopping block just because it’s very broad and there’s been a lot of critical analysis,” Mr. Vance said. “I think there’s going to be a long look at the silica rule, too, to see if it needs to be changed or revoked or repealed under the agency’s rulemaking process.”  

Both the electronic recordkeeping rule and the silica rule are currently the subjects of legal challenges by employer trade associations and other parties.

“I think it’s quite possible the Trump administration may just stop defending these rules in court and let them flounder and be vacated that way,” said Catherine Wilmarth, an associate in the Washington office of Kelley Drye & Warren L.L.P. 

From a legislative perspective, the Republican-led Congress could work with Mr. Trump to reverse or revise the Bipartisan Budget Act of 2015 signed by President Barack Obama in November 2015, experts say. The rule requires all federal agencies with civil monetary penalties covered by the statute to update their fines, and OSHA increased its maximum fines by about 78%, raising the previous $70,000 cap for repeat and willful violations to $124,471. 

Under Mr. Trump’s administration, the increased penalty structure would be “ripe for review” although more difficult to reverse because legislation was passed as opposed to being a regulation, such as the electronic recordkeeping rule, that the incoming administration could choose to stop defending in court or defund its enforcement activities, said Patricia Ogden, partner in Barnes & Thornburg L.L.P.’s Indianapolis office. 

While Mr. Trump might not repeal the increase to the maximum fines under the penalty structure, given that those penalties had not been increased in more than 20 years, he might eliminate the provision that allows these penalties to rise with inflation, Mr. Vance said. 

“I think Trump may choose to retain the rule increasing maximum penalty amounts since it was mandated by Congress as part of the Bipartisan Budget Act,” Ms. Wilmarth said. “However, just because those maximum amounts have been raised does not mean his enforcement team must seek them.”