By Eric J. Conn

As we wind down the year and head into the waning days of the Obama Administration, we look with interest at the Administration’s latest, and likely final, Semi-Annual Regulatory Agenda, published November 20^th.

If one were a jaded OSHA defense lawyer like me, the thought that publication of the Agency’s list of regulatory priorities and planned rulemaking activities on the eve of the Thanksgiving holiday, when most of the country is focused on family, preparing a Thanksgiving feast, and gearing up for some good football, might have been intentional. “Maybe they won’t notice?” Well, we did, and we thought it would be useful for our readers to have a summary of OSHA’s final priorities in the regulatory arena as the Obama Administration focuses on legacy, and what they would like to accomplish before Secretary Perez and Assistant Secretary for OSHA David Michaels turn out the lights next year at 200 Constitution Avenue.

In the “Fall 2015 Statement of Regulatory Priorities” that accompanied this regulatory update, Sec. Perez expressed:

“So many workplace injuries, illnesses and fatalities are preventable. They not only put workers in harm’s way, they jeopardize their economic security, often forcing families out of the middle class and into poverty. The Department’s safety and health regulatory proposals are based on the responsibility of employers to provide workers with workplaces that do not threaten their safety or health and we reject the false choice between worker safety and economic growth. Our efforts will both save lives and improve employers’ bottom lines.”

One note about OSHA’s robust list of planned regulatory activity for 2016 — and an apt idiom for an analysis of the Thanksgiving Regulatory Agenda — OSHA’s eyes are too big for its stomach. While the Agency’s plans look ambitious and aggressive, if history is a guide, the cumbersome rulemaking machinery will prevent much of these plans from coming to fruition, especially in the final few months before the presidential election. Unless 2016 is an exception, this means there really are only a few productive months remaining for OSHA to accomplish some subset of its long list of priority actions. Looking at the roadblocks Dr. Michaels has already faced in the regulatory arena throughout his term – some of which came from the White House itself – it is unlikely OSHA will accomplish much of what appears in its final Regulatory Agenda.

Notwithstanding, it is important to understand the Agency’s rulemaking plans for numerous reasons, the most important of which is that you can count on the fact that Dr. Michaels’ last priorities will become the first priorities of the next Administration, should a Democrat again take the White House.

Here is our summary of OSHA’s top five regulatory priorities for 2016: Continue reading →