Trump administration pumps the brakes on new OSHA rules

by Eric J. Conn

President Donald Trump was carried into the White House on promises (or threats) of rolling back government regulations. At the Conservative Political Action Conference (CPAC) this year, his now former senior policy adviser, Steve Bannon, framed the president’s agenda in terms of “deconstruction of the administrative state,” meaning he plans to dismantle the system of regulations he believes has stymied economic growth.

The spring unified regulatory agenda explains the shift in the U.S. Department of Labor’s (DOL) agenda for rules and standards affecting workplace safety, canceling or placing on the regulatory back burner Obama-era regulatory priorities such as new standards to address infectious diseases in health care and various chemical exposures as well as other broad-based initiatives. Here’s a breakdown of what President Trump’s first regulatory agenda reveals about the Occupational Safety and Health Administration’s (OSHA) future plans. 

Controversial rules off the table or moved to ‘long-term’ actions
Some of the higher-profile OSHA rulemaking efforts that are now effectively dead in the water include:

• Updates to a host of chemical exposure permissible exposure limits;
• Hearing protection for construction workers; and
• Vehicle backing hazards in general industry and construction.

In addition, OSHA has indefinitely delayed plans for some major rules, such as:

• Reforms to the process safety management standard developed in response to President Barack Obama’s Executive Order following the 2013 fertilizer plant explosion in West, Texas;
• A new regulation addressing emergency response and preparedness; and
• A new standard to address infectious diseases in health care.

Electronic record-keeping rule to be revisited
Under the new regulatory agenda, OSHA has introduced two regulatory actions related to the e-record-keeping rule. One regulatory action would extend the deadline for employers to make their first electronic submissions of 300A data to OSHA (the new deadline already announced for December 1, 2017), and the other would reopen the rule for possible wholesale revisions. As the agency put it when announcing the extension earlier this summer, a delay “will allow OSHA an opportunity to further review and consider” the rule.

Officials added that possible revisions to the electronic record-keeping rule include:

• Limiting the scope of injury data employers must submit (e.g., even large employers may be allowed to submit only 300A annual summaries instead of 300 logs or 301 incident reports);
• Increasing the threshold trigger average industry DART rate (DART stands for days away, restricted, or transferred) to be considered a “High Hazard Industry,” therefore reducing the number of smaller employers covered by the rule;
• Increasing the threshold number of employees for smaller employers to be covered by the electronic record-keeping rule; and
• Eliminating or cutting down on the scope of the antiretaliation provisions.

LOTO tug-of-war
Surprisingly, OSHA’s portion of the regulatory agenda includes two rulemaking items on the standard-setting plan related to its lockout/tagout (LOTO) requirements that are somewhat contradictory.

First, OSHA introduced a substantive LOTO rule (still in the prerulemaking stage) that would give employers more flexibility in how they control hazardous energy during service and maintenance activities. According to OSHA, recent advancements in technology and computer-based controls of hazardous energy can be more effective but clash with the existing LOTO standard. The agency has recently seen an increase in requests for variances for such devices. OSHA’s standards division will work on a request for information due out next April.

However, just as the new LOTO rule would give employers flexibility, the Trump administration appears to be pushing ahead on another action that would strip the LOTO rule of some long-standing flexibility. Specifically, OSHA’s latest regulatory agenda maintains the current version of the Standards Improvement Project-Phase IV (SIP-IV), a kind of ongoing rulemaking the agency has used for years to streamline, clarify, and update workplace safety standards to remove duplicative, unnecessary, or inconsistent safety and health regulations.

However, SIP-IV, as initiated by OSHA under the Obama administration, contains a LOTO provision that doesn’t meet the purpose or spirit of the SIP process. Specifically, OSHA proposes to remove the term “unexpected energization” from the LOTO standard, not for clarification or simplification or a minor, noncontroversial rule change, but to overrule the 6th Circuit’s 1996 decision in GM-Delco case).

For 20 years, employers have relied on the interpretation of “unexpected energization” in the GM-Delco case. OSHA now asserts that a change is needed under SIP-IV to return the scope of LOTO to its original intent, ensure that LOTO is used instead of less-effective warning systems, and reduce the burden on compliance officers who must perform a case-by-case assessment of warning schemes. If OSHA wishes to make such a fundamental change to the LOTO rule, it should do so through a separate full rulemaking (which it is already initiating, according to the current regulatory agenda) and solicit and consider comments from stakeholders.

Other rulemaking that remains active
Finally, a few regulatory actions remain in active status, purportedly with general industry buy-in, including:

• A new standard addressing communications tower safety;
• An update to the powered industrial truck standard; and
• An amendment to the regulation for mechanical power presses.

Looking ahead
The Trump administration is following through on the president’s campaign pledge to roll back government regulations, and OSHA is no exception. Given that workplace safety issues were not part of Trump’s appeal to voters, the agency’s backpedaling on various rules shouldn’t come as a surprise. Future semiannual agendas will undoubtedly reflect a continued regulatory rollback.

Subsequent to this article being written, the DOL temporarily shut down its injury reporting portal after being informed by the U.S. Department of Homeland Security (DHS) that some data may have been compromised. Employers are cautioned not to submit their data until they are required to do so.

Eric J. Conn is a founding partner and chair of the national OSHA practice group at Conn Maciel Carey, PLLC, in Washington, D.C. He can be reached at econn@connmaciel.com.

Need to learn more? President Trump’s picks to head the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), and the Department of Labor (DOL) signal a sea change in how federal regulators are likely to approach to oversight of labor and employment policies and practices. But, which Obama-era regulations have withstood the “changing of the regulatory guards” in Washington, D.C.? And, which have already fallen or are about to fall under the new Administration’s oversight? Join us at the 22nd Advanced Employment Issues Symposium where we will kicks off with a fresh look at how the post-election shift in the federal regulatory landscape will affect your business for the coming year. To learn more, click here.