In its waning months, the Obama administration undertook efforts to strengthen, expand and add teeth to the Occupational Safety and Health Administration. One prominent example is a recent rule that makes mandatory certain employer reporting that was formerly required only by exception.
Information recorded on “OSHA 300 Logs” (and other related reports) once had to be kept current in the facility, posted in the workplace once per year and, only if requested, sent to OSHA. The new rule required those reports to be affirmatively submitted to OSHA each year—and to be submitted electronically. That information will be made publicly available on an OSHA website.
The question in the minds of many since election day is: What will become of OSHA regulations under the Trump administration?
Trump’s regulatory promise
While there is talk of eliminating certain agencies, it is not likely that OSHA will be on the chopping block. However, less regulation is likely.
President Trump has already promised that, in general, government agencies will eliminate two regulations for each new one they create. Given the penchant of Congress to make laws, and of agencies to make regulations, that mandate will create some tough choices for OSHA. Which beloved regulations will it sacrifice in order to roll out a single new one?
It seems a certainty that Trump will soon turn his attention to various government agencies and the ever-growing volumes of the Code of Federal Regulations.
Trump has stated that every federal agency will be directed to promptly eliminate 10% of its “least important” regulations. However, Trump has also been quoted as saying that as many as 75% of all regulations could be cut without sacrificing the goals of the agencies that enforce them.
It seems clear that OSHA will face pressure to curtail some of its regulatory zeal.
Agency safe from elimination
OSHA is tasked with protecting the safety and health of the American worker, and it is a safe bet that the Trump administration will not eliminate the agency itself.
However, Trump has expressed great concern that the burden of current OSHA regulation makes it “impossible to build anything.” He campaigned on the promise to bring jobs back to the United States and to stop the mass exodus offshore by companies looking to avoid burdensome taxes and regulations.
At the same time, he is evaluating ways to lower taxes for companies that stay or start up in the United States, while increasing taxes (in the form of tariffs, etc.) on companies considering crossing the border (any border), with plans of importing their products back to the United States.
However, Trump has also promised that, while cutting through layers of regulation that are seen to inhibit new construction, he is committed to maintaining strong and effective protections for the American worker.
Stronger enforcement tools
In recent years, and moreso at the end of the Obama administration, OSHA has strengthened its enforcement tools. Penalties under the Occupational Safety and Health Act were substantially increased. The agency’s willingness to compromise and settle enforcement matters declined, and the overall frequency of enforcement increased.
Many believe that, under Trump, the agency’s focus will shift from enforcement to compliance assistance. To be sure, that has always been an aspect of the agency’s charter, but it is hard to argue the fact that enforcement and regulation have been trending upward.
OSHA and drug testing
Another recent and controversial example of OSHA enforcement is the agency’s new focus on drug-testing policies.
Many employers have strict drug policies that require testing not only for new employees, but also for employees involved in any serious accident or workplace injury. These policies suddenly run the risk of OSHA enforcement when they are applied.
OSHA’s concern is that an employee’s recent drug use may not have caused, or even contributed to, the accident or injury and that the employee will be discouraged from reporting the incident to his or her employer for fear that a positive drug test will result in discipline.
For this reason, OSHA suggests that any drug testing policy must be “narrowly tailored” and must be able to show a link between drug use and a reportable workplace incident. In fact, the employer must have some reasonable basis (beyond the incident itself) for requiring the test.
Some critics of the current rule suggest that OSHA is willing to turn a blind eye to drug use in the workplace, as long as it does not directly result in injuries or accidents.
Such a “wait and see” attitude seems counter to protecting other workers. It could be one of many such regulations to fade away under a Trump administration.
Gregory S. Narsh is of counsel with Pepper Hamilton, concentrating his practice in environmental, safety and health matters.
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