OSHA UNDER TRUMP: WHAT DO WE KNOW AFTER FIVE MONTHS?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.

It has now been five months since Donald Trump’s January 20, 2017 inauguration. So, what insights have the first five months revealed about OSHA under Trump?

What Has Been Delayed?

Beryllium Rule: The effective date of this rule was delayed from March 1, 2017 to May 20, 2017.

Crystalline Silica Standard for Construction: Under the standard, certain obligations were to begin on June 23, 2017. An April 6, 2017 Memorandum announced that enforcement of the standard would be delayed until September 23, 2017.

Electronic Submission of Injury and Illness Logs: As noted in in a May 2016 post on this blog, certain employers are required to submit injury and illness logs to OSHA electronically beginning on July 1, 2017. The agency has announced that it is not accepting electronic submissions of injury and illness records at this time and has proposed extending the July 1 deadline to December 1, 2017.

What Has Changed?

Public Shaming: As noted in an August 2016 post on this blog, one strategy employed by OSHA under the Obama administration was to publicly shame cited businesses in news releases on the agency’s website. With Donald Trump’s inauguration, this practice abruptly stopped, at least with respect to citations with lower dollar amounts. Since January 20th, only four citations have been the subject of news releases on OSHA’s website.

Fairfax Memorandum: The Occupational Safety & Health Act (“OSH Act”) recognizes the role of an “employee representative” who may represent employees’ interests in enforcement related matters. For instance, the Act authorizes participation in the walkaround portion of an OSHA inspection by “a representative authorized by [the employer’s] employees.”

On February 21, 2013, Deputy Assistant Director Richard E. Fairfax authored a Memorandum opining that, even in the absence of an applicable collective bargaining agreement, the role of employee representative can be a person affiliated with a union or community organization. This action prompted a lawsuit by the National Federation of Independent Business (“NFIB”) challenging the memorandum.

On April 25, 2017, OSHA issued a new Memorandum notifying all Regional Administrators that OSHA had rescinded the Fairfax memorandum. The memorandum explained only that the Fairfax memorandum was unnecessary. Two days later, the NFIB moved to dismiss its lawsuit.

New Standards: On January 31, 2017, President Trump issued an Executive Order regarding Fiscal Year 2017. The Executive Order mandates that “whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.” This action shows that, in contrast to the previous administration, new OSHA standards are unlikely under Trump.

What has Not Changed?

Big Fines: As noted in a February 2016 post on this blog, the Federal Civil Penalties Inflation Adjustment Act of 2015 allowed for increased OSHA penalties, beginning on July 1, 2016. In the closing months of the Obama administration, therefore, big fines became more commonplace.

As noted in an earlier post on this blog, more than 50 citations proposing penalties in excess of $100,000 have been issued by OSHA since January 20, 2017. Accordingly, big fines remain commonplace under Trump.

What is Still Uncertain?

OSHA Administrator: Dr. David Michaels left OSHA on January 10, 2017.  At the time of this writing, no new OSHA Administrator has been nominated, much less confirmed.  This delay is not unprecedented. Dr. Michaels was first nominated by President Obama on July 28, 2009; he was not confirmed by the U.S. Senate until December 3, 2009.

Long-Term Strategy: Under President Bush, OSHA Administrator Edwin G. Foulke, Jr. pursued a “voluntary compliance strategy.” Under President Obama, Dr. Michaels shelved this strategy in favor of one promoting deterrence through high OSHA penalties. This new strategy was exemplified in memoranda issued on September 10, 2010 and March 27, 2012.

Until the new OSHA Administrator is confirmed, it is uncertain what strategy will be pursued by the agency going forward. Given President Trump’s repeated public statements and tweets regarding government regulation, such strategy will likely be more akin to that employed by Mr. Foulke than Dr. Michaels. In the meantime, however, Dr. Michaels’ strategy remains intact, as demonstrated by the fines proposed this year. If any relief is forthcoming for employers, it is likely months away. Accordingly, it is recommended that employers continue to exercise the cautionary approach to OSHA inspections outlined in previous posts on this blog.

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