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Skepticism abounds on proposed OSHA rules under Trump administration

Skepticism abounds on proposed OSHA rules under Trump administration

In a somewhat surprising move, potential standards to prevent workplace violence in the health care sector and improve emergency response and preparedness are back on the U.S. Occupational Safety and Health Administration’s radar.

But that does not mean that the Trump administration will act on these and other potential standards, given its deregulatory bent, experts say.

In July 2017, the two potential standards were moved off the Trump administration’s main regulatory agenda and placed on a long-term actions list, meaning the agency did not expect to have a regulatory action within the 12 months after publication of the agenda. Other potential standards also moved to the long-term actions list at that time included an infectious disease rule and tree care standards. 

However, these potential standards, with the exception of the infectious disease rule, were moved back on to the regulatory agenda under the prerule stage, meaning the agency is considering taking action, according to the latest Unified Agenda and Regulatory Plan released earlier this month. The Unified Agenda listed 20 regulatory actions in the prerule, proposed rule and final rule stages for OSHA.

“I thought it was a good regulatory agenda — I’m just very skeptical as to whether it will result in anything,” said Jordan Barab, former deputy assistant secretary of OSHA under the Obama administration and founder of the Confined Space safety and health newsletter.

“Going to the prerule stage doesn’t signal any particular speed,” said Micah Smith, Washington-based of counsel with Conn Maciel Carey L.L.P. “It doesn’t show a whole lot of movement, but it does show some movement. You can leave things on the long-term list essentially forever.”

The agenda moves were “a little surprising” given that Scott Mugno has yet to be confirmed as head of OSHA, and could signal that these regulatory proposals are a priority of Secretary of Labor Alexander Acosta, said Tressi Cordaro, a shareholder with law firm Jackson Lewis P.C. based in Reston, Virginia.

“It is curious they are taking action on things without having the new political leadership there,” Mr. Smith said. “In the absence of political leadership, the agency just continues doing what it does, and there’s no one to stop them from doing it.”

In July 2016, OSHA started laying the groundwork for a potential regulatory standard aimed at reducing fatalities and injuries in the tree care industry, which experiences an average of 70 deaths each year. On Saturday, a foreman for tree care firm Arborwell Inc. died in a climbing-related accident at a job site in Palo Alto, California, according to a statement by a spokesperson for the company. California workplace safety regulators are investigating the incident.

In December 2016, the National Advisory Committee on Occupational Safety and Health recommended that OSHA expeditiously 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. 

In January 2017, OSHA granted petitions by a coalition of labor unions to pursue a standard to prevent workplace violence in the health care sector, as employees in this industry are at disproportionately higher risk of violence than other industries.

However, federal agencies wanting to issue new regulations will run headfirst into President Donald Trump’s January 2017 executive order stating 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, experts say.

“It’s better having workplace violence and emergency planning on the agenda itself rather than in limbo on the long-term agenda,” Margaret Seminario, director of safety and health at the AFL-CIO union in Washington, said via email. “But given the Trump administration’s strong commitment to deregulation, it’s clear that deregulatory actions, including rollbacks in the beryllium rule and injury reporting rule, are their top priorities. I would be very surprised if the Trump administration took any real action to move forward in a meaningful way on new safety and health protections.”

On May 11, OSHA announced that it would be begin enforcing certain provisions of its beryllium rule, but planned to delay enforcement of certain ancillary provisions of its general industry standard until Dec. 12. Both the beryllium rule and a planned regulation to reconsider, revise or remove provisions of OSHA’s electronic record-keeping rule are in the proposed rule stage, according to the Unified Agenda.

A required review of the potential impact on small businesses is scheduled to begin this year for the emergency response proposal and in 2019 for the tree care and workplace violence proposals — such reviews are required under the Small Business Regulatory Enforcement Fairness Act.

“I’m highly skeptical, first of all, that they will be able to keep to that schedule,” Mr. Barab said. “It’s a fair amount of work to even put together a SBREFA panel, and OSHA’s standards budget has been cut by 10% over the last couple of years. Second of all, I don’t have any confidence that any of those are going to move even beyond the SBREFA stage to the proposal stage, because they are going to run up against this executive order. I don’t see how OSHA chooses two protections to remove if it wants to advance any of these.”

In addition to the infectious disease potential rule, a standard to update regulations for process safety management and the prevention of major chemical accidents remains on the long-term actions list despite several significant chemical incidents in the past year. The U.S. Environmental Protection Agency last Thursday issued a proposed rule that would weaken risk management mandates for these facilities adopted under the Obama administration.

The tree care standard is the OSHA regulation that has the best chance of moving forward, according to experts, who also express doubt that the process safety management regulatory proposal will advance.

“That’s one that’s likely not going to be very controversial because it’s being sought by the (tree care) industry,” Ms. Cordaro said. “Tree care might be the one standard that might be able to get out under this administration.”

“PSM is going to be much more controversial than tree care,” she added.




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