In the final days and weeks of the Obama Administration, OSHA promulgated several significant regulatory changes. For example, after several decades, it finally completed its update to the Walking Working Surfaces Standard (the regulation covering slips, trips and falls). It also published a controversial Electronic Injury Data Submission Rule, extended the statute of limitations for recordkeeping violations, added two new occupational health exposure standards for silica and beryllium, and brought the U.S. Hazard Communication Standard (the chemical right-to-know regulation) more in line with the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals. To name a few.
But, as a new administration took the reigns at the Department of Labor, many wondered what would be the fate of these “midnight rules”? While some Obama-era OSHA regulations have been subject to additional rulemaking (or even rule-rescinding), as expected given Pres. Trump’s promises for deregulation, most have remained untouched. Indeed, when Scott Mugno, President Trump’s nominee for OSHA’s top job, recently announced his decision that he was withdrawing his name from consideration, the likelihood that OSHA would remain without a permanent, appointed leader for the entirety of President Trump’s term has increased dramatically, and conversely, without a captain steering the ship, the likelihood of OSHA carrying out the Trump Administration’s plan for major de-regulatory action has dramatically decreased.
Much more likely, OSHA will continue to operate over the course of the next year and a half of the Trump Administration as it has since shortly after his Inauguration – modest de-regulatory efforts to nibble around the edges of Obama-era regulations, but nothing close to the level of radical deregulation that had been advertised on the campaign trail and which we have seen at other agencies. Thus, the “midnight” regulations promulgated at the tail end of the Obama Administration appear likely to remain largely intact. Continue reading →
In May 2017, Eric J. Conn sat down with Leona Lewis, Founder of ComplyEthic, to discuss the regulatory landscape at OSHA as we transition from Obama to Trump, and what employers should do to successfully navigate the new regulatory landscape, for a new segment on ComplyEthic’s terrific Podcast – “Masters of Disaster.” Here is a link to the interview on the podcast.
The Podcast segment was entitled “OSHA Regulation Under Trump Administration; What Companies Can Do,” and featured discussion about the differences in priority and approach between Obama’s and Trump’s OSHA, new regulatory strategies that may be available to employers, and what steps employers should take to prepare for and manage the new regulatory environment.
The ball has dropped, the confetti has been swept out of Times Square, and 2016 (and the Obama Administration) is in the books. It is time to look back at the year and take stock of what we learned from and about OSHA over the past year. More importantly, the question on everyone’s mind (well, maybe just ours), is what can we expect from OSHA in the first year of the Trump Administration?
This webinar event reviewed OSHA enforcement, rulemaking and other developments from 2016, and forecast the Top 5 OSHA Issues employers should monitor and prepare for in the New Year and the new Administration.
President Obama has tapped a moderate in Judge Merrick Garland, the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, for the U.S. Supreme Court vacancy left by the late Antonin Scalia. Here is a link to a video about Judge Garland posted on the White House website. Presidential politics may, however, stand in Garland’s way, as Senate Republicans have threatened to block any nominee, even from getting a hearing or vote.
Because the D.C. Circuit is often referred to as the second-highest court in the land, Judge Garland’s court opinions have been closely watched. Garland, nominated to the federal court of appeals by President Bill Clinton, has been viewed as a moderate left-of-center jurist, and has taken the side of business in quite a few high profile cases.
One example is Volks Constructors, an Occupational Safety and Health Administration case in which Judge Garland overturned the decision of the OSH Review Commission and concurred with the employer’s argument that OSHA’s six-month statute of limitations applies to injury and illness recordkeeping violations (making an inaccurate or incomplete OSHA log). OSHA had tried to impose a legal theory that inaccurate logs were a “continuing violation” that tolled the statute of limitations period for every day the log remained inaccurate. Judge Garland ruled that a recordkeeping violation occurs at a point in time when the recordkeeping entry was due to be perfected, it does not continue beyond that date, and OSHA may not cite beyond six months from that date. Judge Garland cautioned not to override his opinion, emphasizing:
“This does not mean, however, that the statute could not admit of a continuing violation theory under other circumstances.”
OSHA is working on a rulemaking to undo that decision.
President Obama selected Judge Garland as a moderate in what appears to be an effort to Continue reading →