The Trump Administration’s Effect on OSHA in 2017

With the 1st anniversary of the Trump Administration taking office recently passing, we thought it would be a good idea to reflect on the changes that the administration made to the agency who was created to assure safe and healthful conditions for working men and women – OSHA.

Fewer Regulations

In January 2017, an executive order was signed, which required federal agencies to cut two regulations for every new one proposed. This executive order was later clarified to only apply to those regulations with a proposed cost of $100 million or more. The purpose of this order is to ensure that the cost of new regulations be offset by the two existing regulations that are annulled. Therefore, for any new proposed violations, OSHA must be clear on appropriate cost for implementing the rule especially if it has a proposed cost of $100 million or more.

On February 8, 2017, the Natural Resources Defense Council (NRDC) filed a lawsuit which claimed that the executive order “directs federal agencies to engage in unlawful actions that will harm countless Americans.” In August 2017, Judge Randolph Moss stated that a ruling could come in the next few months. However, he expects an appeal from either side no matter the outcome. At this time, there is no further information regarding the lawsuit that was initiated by the NRDC.

OSHA Administration Role Changes

David Michaels stepped down from his role as OSHA administrator on January 10, 2017 after being the longest-servicing administrator in agency’s history.

On October 27, 2017, President Trump nominated Scott Mugno to lead OSHA as the assistant secretary of labor. Mungo’s plan is to “sunset” certain OSHA regulations. This process means that after a standard is in place for a fixed amount of time, they should be subject for provisions where they either expire or need to be re-issued. This focus is due to the fact that there has been a significant amount of change in our workplaces since the OSHA Act was established in 1971, and therefore some of the regulations that were instated back then should be re-reviewed.

Federal Hiring Freeze

The Trump Administration implemented a federal hiring freeze on January 23, 2017 with the exceptions of military personnel, natural security, and public safety.

Although the Trump Administration lifted the federal hiring freeze in April 2017, it was noted that OSHA has not filled vacant compliance officer positions. Congress noted that OSHA had 1,838 federal state inspections for around 8 million workplaces. According to the administration, OSHA only has enough funding to inspect every workplace under its jurisdiction every 159 years. Congress demanded information such as; new inspectors that have been hired since January 2017, inspectors who have left since January 20, the number of vacancies that are planned to be filled by the end of the fiscal year 2017, and other applicable information.

Federal Contractor Disclosure Repeal

On February 2, 2017, the House voted to repeal the federal contractor disclosure requirements. This executive order required employers who were bidding for federal contract type jobs in excess of $500,000 to provide a list of their labor-law violations of the past three years if the violation was from any of the 14 established violations of workplace protections. The Senate later voted to revoke the requirements. President Trump signed the resolution to repeal the federal contractor disclosure requirements.

Injury & Illness Records

The OSHA Volk’s Rule, “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness,” was nullified in March 2017. This rule essentially allowed for OSHA to issue citations to employers who failed to record injuries and illnesses within a five-year period.  By nullifying the Volk’s rule, OSHA could not issue a citation past the statutory six-month period.

In May 2017, Congress introduced The Accurate Workplace Injury and Illnesses Restoration Act to reinstate the Volk’s rule. This Act amends the six-month statute of limitations of the OSHA Act to clarify that a violation continues to occur.  It also states that the employer’s responsibility is a continuing obligation and that this requirement does not expire even if the employer fails to create the necessary records when first required.

Keep in mind that OSHA considers recordkeeping an ongoing obligation for the employer to maintain and update recordkeeping files for the purpose of tracking trends in the workplace. By tracking injury and illness trends, employers can utilize the information to mitigate the hazards to prevent future incidents.

OSHA Inspection Participants

In April 2017, OSHA removed their Union Walkaround rule that had permitted non-union employees to elect a representative that is affiliated with a union or community organization to accompany OSHA compliance officers during their inspections.  Moving forward, only authorized union agents and employees can participate during OSHA inspections.

Beryllium Rulemaking

OSHA’s proposed final rule on Beryllium is up for discussion for the construction and shipyard industries as requirements for certain provisions in these industries are under reconsideration. In August 2017, OSHA asked for input on whether or not existing standards cover the hazards associated with beryllium exposure during abrasive blasting in construction, abrasive blasting and welding in shipyards. At this time, they are still reviewing the information provided.

Projected Dates for Proposed Regulations

On July 20, 2017, the Department of Labor updated their unified agenda of regulatory actions which includes the projected dates for all proposed regulations. While the Fall 2016 agenda contained 30 OSHA regulations in pre-rule, proposed rule, and final rule stages, the Fall 2017 agenda contains less than half of last year’s by only have 14 OSHA regulations listed. According to the Office of Information and Regulatory Affairs, “By amending and eliminating regulations that are ineffective, duplicative, and obsolete, the Administration can promote economic growth and innovation and protect individual liberty.” Executive Orders are requiring agencies to reduce regulatory burden and implement regulatory restructuring initiatives. Therefore, we are seeing less than half of potential regulations in the three stages just within the past year.

Anonymity for Victims of Workplace Accidents

During the Obama Administration, OSHA began to list employee names who were involved in a fatal workplace accident on their website in an effort to keep employers accountable for safety & health of their workplaces. In August 2017, amidst concerns that this practice was unfair to employers and encouraged employers from reporting fatal accidents, the list of names of people who were workplace accident victims was removed from osha.gov.

Senate Appropriations Bill

On September 7, 2017, the Senate Appropriations Bill was presented to the Senate to consider appropriate stable budgets for worker safety agencies like OSHA, NIOSH, and MSHA. This would keep OSHA able to maintain their current funding. However, there are House Appropriators who are trying to reduce funding for those agencies. In addition to reducing funding, members of the Rules Committee are attempting to block OSHA from implementing the electronic submission of the recordkeeping forms and the final rule on silica.

On September 14, 2017, The House passed the Senate Appropriation Bill, but it was not likely to go be passed by the Senate without modifications. An amendment was added to pursue prohibiting funding for OSHA’s electronic recordkeeping submission requirements. However, the proposed amendment for the potential of blocking funding for the final silica rule was not brought to a vote.

At this time, nothing will be certain until the Fiscal Year 2018 budget is agreed upon by both chambers. When new information is received, we will continuously monitor the situations at hand to provide you with any potential updates that could affect your company.

Electronic Recordkeeping

The electronic recordkeeping deadline was delayed several times until OSHA announced they would continue to accept electronic submissions up until December 31, 2017. During the deadline delay, OSHA announced their plans to change provisions of the electronic recordkeeping rule. For example, OSHA is not accepting Form 300 and 301 at this time for covered establishments with 250 or more employees. OSHA announced that it will issue a notice of proposed rulemaking to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data.

Updated Regularity Agenda

On December 14, 2017, the Department of Labor updated their regulatory agenda from fall 2017. OSHA’s agenda currently lists 16 OSHA regulations, 14 of which were listed in the previous agenda. Two rules were moved from the long-term action status: Cranes and Derricks in Construction Standard and Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records.

The remaining regulations were moved from the proposed rule state in the previous agenda to the final rule stage: Crane Operator Qualification in Construction, Quantitative Fit Testing Protocol, Improve Tracking of Workplace Injuries and Illnesses, Occupational Exposure to Beryllium, and Technical Corrections to 16 OSHA Standards.

According to the Bureau of Labor Statistics, 2017 resulted in a 7% increase in workplace injuries since 2015 and the highest number of fatalities on the jobsite since 2008.

Looking Forward

In accordance with the Civil Penalties Inflation Adjustment Act, civil penalties for violations of workplace safety & health standards rose in January 2018.  All violations increased by 1.02%.  Serious, Other Than Serious, and Posting Requirement violations increased a maximum of $12,934 per violation. Failure to Abate violations increased to a maximum of $12,934 per day beyond the abatement date. Willful and Repeat violations also increased by 1.02% to a maximum of $129,336 per violation.

Purpose of OSHA Changes

Each of these changes and proposed changes have a common goal in mind – to continue to provide safe and healthful workplaces across America. Amidst these changes, OSHA’s mission remains the same – to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.

How to Keep Up With OSHA

Part of our job as Safety & Health Consultants is to keep up to date with OSHA’s proposed and final rules along with other new safety information. To learn more about our full service offerings, download our service flyer today: