Author: Darius Rohani-Shukla

Biden’s OSHA Pushes Heat Illness Prevention Rule Close to the Finish Line

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By Eric Conn, Beeta Lashkari and Darius Rohani-Shukla

On January 14, 2025, just six days before the transition from the Biden Administration to the second Trump Administration, OSHA closed the books on collecting public comments about the agency’s Notice of Proposed Rulemaking (“NPRM”) for a Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings standard, taking the proposed rule one step (perhaps a very long step now) away from issuing a final Heat Standard. On behalf of the Employers Heat Illness Prevention Coalition, we submitted a robust set of written comments detailing our concerns about some of the more onerous and rigid aspects of the proposed rule.

Although OSHA has now moved the Heat Rulemaking so close to the finish line, it is likely that the finish line will be pushed back, potentially for at least four years.  We do not expect Trump’s OSHA to engage in much, if any, rulemaking activity, other than de-regulatory actions. From a process standpoint though, the next time there is a Democrat in the White House, OSHA would inherit this flawed proposed rule and could issue it without having to navigate through any of the rigors of Administrative Procedure Act notice-and-comment rulemaking (i.e., there will not be another Small Business Advocacy Review (“SBAR”) Panel, or another NPRM and public comment period).  So, that written comment period was one of the last chances for stakeholders to submit written comments about a proposed federal heat illness prevention standard.

Below we provide a history of the rulemaking, an outline of key requirements in the proposed rule, a high-level summary of the comments submitted by our Employers Rulemaking Coalition,  our thoughts on the upcoming public rulemaking hearing, and a reminder about OSHA’s Heat National Enforcement Program (“NEP”), since, before you know it, summer temperatures will be here again.

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OSHA Sends Proposed Final “Worker Walkaround Representative Designation Process” Rule to OMB

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By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

In early 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule that would amend existing regulation 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of that regulation:

  1. Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer that is being inspected, to now allow non-employee third parties to act as employee representatives during OSHA inspections.
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections. The existing regulation focuses on non-employees with a technical credential, “such as an industrial hygienist or a safety engineer” to accompany OSHA on an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
  3. The proposed rule may also expand the role these third party representatives play during an OSHA inspection. The OSH Act and the existing regulation speak in terms of the representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA pursuant to OSHA’s broad subpoena authority, etc.

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Solicitor of Labor Publishes Annual “Enforcement Report” for 2023

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By Darius Rohani-Shukla and Eric J. Conn

In late January 2024, the Department of Labor released its annual report summarizing the Solicitor of Labor’s (SOL) enforcement work in FY 2023. SOL enforces more than 180 federal statutes and their implementing regulations. This report is a helpful resource for employers as it demonstrates SOL’s most recent enforcement priorities. In its report, SOL emphasized three aspects of its FY23 enforcement work:

  • SOL’s Emphasis on Retaliation Claims;
  • SOL’s Use of Litigation and Amicus Work to Affect Employee Misclassification and Coercive Employer Tactics; and
  • SOL’s Willingness to Use All Tools at its Disposable.

As the Solicitor of Labor said as an introduction to the report:

“We recognize that as the government, we play a unique role in the federal labor enforcement landscape…. This report will focus on three key aspects of our work: building out our retaliation priority across program areas; utilizing our litigation tools and our amicus and appellate practices to build positive developments in the law, such as combatting misclassification and coercive employer tactics; and deepening our use of all the tools in our toolbox, from warrants, to enhanced
compliance agreements, to criminal enforcement coordination.”

  1. SOL’s Emphasis on Retaliation Claims

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