Trump’s OSHA deregulation push is no fait accompli

The spotlight throughout 2018 will once again be on the Trump administration’s efforts to deregulate government and roll back regulations brought in under the Obama government. When it comes to the Occupational Safety and Health Act (OSHA), however, one expert believes the current president will not have an easy time making any big changes.

During his first year in office, Trump moved forward with some notable initiatives aimed at deregulation. He relied on the rarely-used Congressional Review Act to eliminate 14 regulations, including two OSHA-related rules, the “Volks” rule around record-keeping and the “Fair Pay and Safe Workplaces” rule.

Another example of rollback action took place in January 2017, when Trump brought in the so-called “2-for-1” regulations. This executive order stipulates that if any government agency wants to get a new rule out they must cancel two older ones.

In addition, some OSHA rules that have not been updated in years were either moved to “Long-term Actions” status (including Workplace Violence and Infectious Diseases in Healthcare) or outright removed from the regulatory agenda (examples include Vehicle Backing Hazards and Hearing Protection in Construction).

These actions represent a “pretty fair amount of activity for the first year of an administration,” according to Micah Smith, partner with Conn Maciel Carey LLP, a law firm specializing in OSHA matters. He was speaking during a “2018 OSHA Forecast” webinar recently hosted by his firm. Despite all the activity, however, Smith noted that there have been no Notices of Proposed Rulemaking issued by OSHA to rescind existing rules.

“Every rule that was pushed out before 2016 is still in place and is still being enforced.”

This is due to a few notable obstacles blocking Trump’s deregulatory path. One is the absence of political appointees within OSHA. Without an Assistant Secretary and other top-level officials, “career folks,” as Smith calls them, are running OSHA. Not only do these employees feel powerless to make big changes, “they are probably career OSHA personnel who believe heavily in the rules and the mission that they’ve pushed out before.”

Another hurdle comes right from the Occupational Safety and Health (OSH) Act and what Congress did when it created OSHA, Smith said. Section 6(b)(1) essentially says that changes can only be made to serve “the objectives of the Act.” And those objectives are “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” (Section 2(b))

“You have to ask yourself, if OSHA decided, as part of the Trump agenda, to revoke a rule for ‘economic growth reasons,’ could they do that? You don’t see that in the purpose of the OSH Act,” Smith said. “So, if Trump did try to push this deregulatory agenda in this way, you might see some very fertile ground for a legal challenge.”

Smith added that for a significant amount of deregulatory action to happen, OSHA will need to demonstrate that an existing standard is not reasonably necessary and appropriate, or that their choice to revoke one of them isn’t arbitrary and capricious.

“That’s going to be the standard that the Trump administration will be held to in litigation if they do try to start rolling back these rules,” Smith said. “Call me a cynic, but I’m not optimistic about how easy this will be for the Trump administration to start rolling back rules.”

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