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November 16, 2016 | by Steve Lawrence

Workplace Enforcement in the New Administration

OSHA will likely back off slowly under Trump

It’s anticipated that the Trump administration will bring a softer hand and a more conciliatory attitude to workplace safety enforcement for the industrial metals supply chain. But it won’t happen right away as power passes to a president-elect who has promised an easing of federal business regulations.

This from David Jones, head of the workplace safety practice group at the national law firm Ogletree Deakins. Jones is a 35-year veteran in the field, having served as legal counsel at the Occupational Safety and Health Administration (OSHA), before moving into private practice.

“Under President Obama, OSHA has become a very tough enforcement agency,” Jones told the MSCI Safety Conference in Anaheim. “But we would expect Trump to cut regulations and promote more cooperation and compliance assistance in line with a more pro-business Republican agenda.”

Jones said that change, in any case, would almost certainly come slowly. “There is tremendous inertia in an agency like OSHA with so many career employees,” he said. “It’s like turning a huge ship and takes time.”

In the meantime, employers can still expect the agency to pursue workplace violations on several fronts. That will include use of the Severe Violators Enforcement Program to crackdown on willful violators and “indifferent employers”. He cautioned that for the near future employers can be forced into SVEP, which involves a minimum three years of intense scrutiny, simply by being accused of a willful or repeated violation. “There is no due process here,” Jones said. “They have no need to prove the accusation, you can be pushed into this burdensome program based just on the key citation issued.” Employers should count on this aggressive posture, at least until the top leadership at OSHA changes.    

Similarly, the new administration can be expected, in time, to reduce the use of Investigative Subpoenas, an important tactic now that can require employers, especially in higher stakes investigations, to produce new and unprecedented quantities of documents.

It’s unclear what may happen with regulations in place that require electronic record keeping and reporting to OSHA, which are then being posted on a public access website. “This public access is being challenged in court,” Jones said. “The regulation seems designed mainly to shame employers for even minor violations.” It’s quite possible, for instance, that a Trump administration would keep the electronic records requirement, but eliminate the public posting. Jones urged MSCI members to track court challenges to this regulation in Texas and North Dakota. Those cases could also change the regulation in significant ways.  

But the general lesson here, he emphasized, regardless of who leads it, is to avoid OSHA inspections whenever possible and minimize “any excessive entanglements with the agency. You have to understand that the inspectors from this agency really don't quite measure up to your own safety folks. Your people are generally going to be a lot more knowledgeable about the safety issues and problems you face.”

To keep your business out of this line of fire requires a strong preventive program. First, take consistent, proactive measures in all areas of your business, not just the factory floor, to avoid incidents. This means continuous job safety and near-miss analyses, a vigorous program of internal, even third party, safety audits and a formal procedure for handling accident investigations and the lessons learned from them.

Then, “you must have an up-to-date plan in place to cope with OSHA inspections when they show up,” Jones said. “This means training with that plan and making sure it includes the right employees—knowledgeable and articulate about your safety efforts—in any team that accompanies the OSHA inspectors.”