OSHA will take one of two very different approaches to health and safety rulemaking and enforcement over the next four years, depending on who emerges victorious in November’s U.S. Presidential election. A recent webinar explored how those visions differ and hypothesized what tangible effects either a Joe Biden or Donald Trump victory will have on the agency.
The Pandemic Priority
Regardless of who wins, OSHA’s key focus will invariably be on managing the current COVID-19, pandemic, asserted Kate McMahon, partner at Conn Maciel Carey, the Washington, D.C. law firm focused on labor and employment, workplace safety and litigation that hosted the webinar. However, the form that management will take will look significantly different depending on who prevails at the polls. If it’s Biden, it is highly likely his administration will issue a federal-level Emergency Temporary Standard (ETS) within its first 100 days.
“It will codify and make mandatory a lot of what you are probably already doing,” she said. This includes things like having an infectious control plan in place; ensuring workers are not coming to work sick; temperature taking and symptoms evaluation; staggering times when people come to work; and applying engineering controls like filtration system upgrades and putting barriers up.
This would be followed by a permanent infectious disease standard rulemaking.
By contrast, if Trump is victorious, the law firm expects to see continued resistance to the promulgation of an ETS or a permanent infectious disease standard at the federal level. A consequence of that will be various states promulgating their own ETSs, in the absence of a federal ETS. This was already seen in some states this year as the pandemic took hold.
These state plans, McMahon said, “are not all going to look the same. So companies that operate in multiple states will have a patchwork of regulatory requirements (to follow) that will overlap, but will not be identical. So there is a burden if you operate in multiple states.”
The prospective administrations will also, in all likelihood, pursue different agendas when it comes to rulemaking. Should Trump win a second term, “we think that even more than in the first term, things may come to a screeching halt in terms of active rulemaking. To the extent that there are new rules, they will be deregulatory in nature,” said McMahon.
Under Trump, there would be a significant effort to advance the concepts that characterized two executive orders issued in 2019. The first, EO 13891, looks to increase transparency by requiring agencies to publish their guidance and to make it discoverable through a searchable database that “not just lawyers can access but anyone who is trying to figure out how to comply with the law,” said McMahon.
The order spelled out that two regulations must be repealed for every new one that is adopted, and this approach would surely continue if Trump wins a second term. “The bottom line is that it would become a lot harder to issue guidance, and there would be a lot less guidance issued.”
If the other executive order, EO 13892, moves forward under Trump, an employer would likely be able to essentially contest a citation before it is issued. They will have an opportunity to meet with OSHA and discuss the appropriateness of the citation in advance, as opposed to doing it afterward in the context of a formal conference.
“That’s a sea change from our perspective,” said McMahon.
Should Biden win the White House, expect to see OSHA pick up on revisions to the Process Safety Management standard that were moving along during the Obama administration but “died on the vine” under Trump. It covers the manufacture of explosives and processes around flammable liquids and gases.
Returning Rules Under Biden
E-recordkeeping would come back into the spotlight under Biden as well. This would involve going back to the original plan that required companies to submit OSHA 300, 301 and 301A forms, not just the current requirement of only the 300A annual summary of incidents. These will also be made publicly available on the OSHA website.
A Biden administration will also likely mean the resurrection of the so-called “Volks Rule,” which extended the statute of limitations of the OSH Act for OSHA 300 log violations to five years, rather than just six months. In 2017, Trump signed a Congressional Review Act to repeal the rule. According to McMahon, its return will mean that health and safety practitioners will have to “continue to do a very good job with their OSHA logs. They need to be accurate and carefully reviewed.”
The webinar panelists also discussed the still-vacant Assistant Secretary of Labour position at OSHA, a void that has existed for the entirety of Trump’s term in office. Amanda R. Strainis-Walker, partner with Conn Maciel Carey, asserted that a Biden win would likely result in a speedier filling on the position than under Trump. She also put forth the names of two people who are strong candidates to fill the seat: Jordan Barab, former Deputy Assistant Secretary of Labor at OSHA, and Debbie Berkowitz, a senior policy advisor for OSHA from 2009 to 2015.