Top 5 OSHA Changes

At this point two months into the Trump Administration, if there’s one thing we’ve learned, it’s that virtually nothing will stay the same. Including the future course of OSHA. Here’s a synopsis of the Top 5 OSHA changes we might see under the new Administration:

1. NO MORE OSHA “NAME AND SHAME” INITIATIVE

Under President Obama, OSHA increased the number of negative press releases concerning high-profile and high-penalty cases. Many employers considered that compliance tactic to be juvenile and harassing rather than serving a legitimate purpose. The Trump Administration has ended the use of the tactic, giving employers a sigh of relief.

2. INCREASED PENALTY AMOUNTS MAY BE ROLLED BACK

You may recall that last summer, OSHA increased its maximum penalties. This was done pursuant to the Federal Penalties Inflation Adjustment Act. However, the Occupational Safety and Health Act was not amended in conjunction with the Federal Penalties Inflation Act. The plain language of the current OSH Act actually prevents OSHA from issuing penalties higher than the levels set in 1990 (the last time Congress amended the OSH Act). So, there is an apparent conflict, as OSHA is seeking to enforce increased penalties in an amount higher than those specifically enumerated in the OSH Act. Either the OSH Act will have to be amended, or OSHA’s policy of increased penalties will have to be rescinded.

3. OSHA’S POSITION ON TRANSGENDER RESTROOMS MAY CHANGE

OSHA has a best practices document from 2015 entitled “A Guide to Restroom Access for Transgender Workers.” In the document, OSHA states that “a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him or herself.” OSHA claims authority to take a position on this issue under the “sanitation standard” (29 CFR § 1910.141), where employers are generally required to provide employees with toilet facilities. The Trump Administration recently revoked President Obama’s federal guidelines instructing public schools to permit transgender students to use bathrooms that match their gender identity. While the Trump Administration has not directly addressed this issue in the workplace, it appears that OSHA’s stated position under the “sanitation standard” is on a collision course with the Administration’s position on this issue.

4. “RECORD-KEEPING” RULES MAY CHANGE- AGAIN

The U.S. House of Representatives approved the Midnight Rules Relief Act (MRRA) earlier this year. The MRRA would allow Congress to overturn federal regulations enacted during the final year of a president’s term. If the MRRA becomes law, it could affect any and all OSHA regulations that were passed in 2016. One such target may be OSHA’s final rule to “Improve Tracking of Workplace Injuries and Illnesses.” This rule requires employers to electronically submit workplace injury information to the government, with OSHA posting the data on its public website. The rule also shifts the requirement of mandatory post-incident drug testing policies to a probable cause testing requirement. Finally, the rule includes increased scrutiny of many employers’ safety incentive programs, thereby doing away with safety bonuses that many employees have become accustomed to receiving. Whether this Obama-era rule will be affected depends on whether the MRRA is passed into law.

5. ENFORCEMENT AND COMPLIANCE MAY REALIGN

Under President Obama’s administration, OSHA focused on enforcement. OSHA made changes within the agency to facilitate that effort, such as replacing or moving compliance and outreach positions to enforcement-type jobs. Now, under the Trump Administration, there is an expectation of increased compliance efforts. Consequently, OSHA may be offering more compliance assistance and outreach to employers. One potential result of this shift is the elimination from OSHA’s jurisdiction of a number of the 22 whistleblower statutes OSHA oversees.

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