James Thornton, chair of the Government Affairs Committee of the American Society of Safety Professionals, offers his view of the issues facing the U.S. Occupational Safety and Health Administration in 2021, including agency leadership and reinvigorated standards activity.
(This blog is reprinted with permission from the American Society of Safety Professionals.)
It would be fascinating to travel into the future and see what history will say about 2020. As the year closed out, we all had experienced life-altering events that will be forever etched in our memories. Time will determine the impact of these events, but certainly “new normals” have and will be formed. Virtually every facet of our lives has changed – socially, financially and professionally.
The same is true of occupational safety and health (OSH) professionals. Throughout our careers, we have used our education and skills to help workers return safely to their families at the end of their workday. During COVID-19, many of us are using technology to perform those tasks from afar. We have had to learn new skills and alter our behaviors. We have all been challenged in new ways.
The U.S. Occupational Safety and Health Administration (OSHA) has been similarly impacted by the pandemic. Agency personnel have coped with COVID-19 while also working to help employers address hazards arising in essential industries. Like ASSP, during the pandemic, OSHA has had to reflect on how best to pursue its mission in the face of adversity and make many operational adjustments to meet that challenge.
As of this writing, a new administration will be in place in January 2021 and it will likely have a much different approach to OSH. As a result, the agency will be expected to quickly transition to a new operating philosophy.
Here’s a look at four key issues facing OSHA in early 2021:
1. OSHA Leadership
OSHA has been without an assistant secretary for this entire Trump Administration. Despite this, thanks to the leadership of an acting administrator, the agency has made progress and engaged effectively with key stakeholders, including professional organizations like ASSP, organized labor groups and employer groups.
What will happen with the incoming administration? The names of several candidates for this position are being discussed, and OSH organizations like ASSP have been contacted for information about them. While the question of the Senate majority remains unknown for now, it’s likely the incoming administration will quickly nominate a candidate and begin the confirmation process.
2. Regulatory Enforcement
OSHA is perpetually challenged about the annual number of inspections performed. It seems to be THE metric against which the agency is gauged. Labor always demands more, while management always wants fewer. Much less focus is placed on the actual depth of the inspections.
At the beginning of the current administration, labor groups voiced concern that the number of inspections would be dramatically reduced. From 2016 to 2018, the number of annual inspections has remained fairly steady at approximately 32,000. Additionally, many inspections have generated relatively high levels of penalties consistent with past practice.
Consequently, there appears to be a relative level of acceptance about to the number of inspections. OSHA has established policies with respect to inspections in industries returning in the wake of COVID-19, although the current resurgence is affecting many of these industries. This will certainly affect the number and type of inspections performed in 2021, and there also appears to be several formal employee complaints generated from COVID activities. And while the agency has a well-structured, sustainable plan for performing inspections given its current staffing levels, it is likely that the new administration will be urged to increase enforcement activities.
3. Federal Safety Regulations
In an effort to obtain a zero-net cost impact to industries, the current administration instituted a “one -in, two-out” order with respect to implementing new federal standards. Despite this executive order, OSHA remained active in rulemaking, promulgated standards and/or compliance guidance on topics such as beryllium, silica, recordkeeping, heat, whistleblowers, medical records and COVID-19.
It is important to note that several executive orders issued in 2020 require all government agencies to identify standards that may inhibit economic recovery and rescind/modify/waive requirements as necessary. Several of these orders urge government agencies to use latitude when enforcing standards that have significant impact on economic recovery. Another recent order requires government agencies like OSHA to post all guidance documents on a website, mandating that anything not posted would be viewed as rescinded for enforcement purposes.
The new administration will likely reverse these orders. It will also likely reinvigorate standards activity on topics such as workplace violence, heat exposures, infectious diseases and possibly even permissible exposure limits (PELs). As these standard activities increase, ASSP will call on its practice specialty member communities to help formulate our response.
4. Potential Developments
A laundry list of other developments could emerge in the near future. For example:
- The Trump administration may issue some “midnight rules,” although time is running out.
- OSHA is celebrating its 50th anniversary this month. Could a “new and improved” version of OSHA be in the making? The new administration could push for renewed congressional attention to the Protecting America’s Workers Act, which would require significant OSHA reform.
- Any actions related to revising the many outdated PELs would be a significant development for OSH professionals and their organizations.
- OSHA might develop an emergency temporary standard for COVID-19 as we have seen in several states.
- Look for renewed support of federal advisory committees such as NACOSH and MACOSH.
- Other activities could address recordkeeping, guidance on using drones for inspections and the Fair Pay and Safe Workplaces executive order from 2014 that disqualifies contractors with poor safety records from obtaining federal contracts.