Don't Be Too Quick to Assume That Trump Will Gut OSHA Standards

A recent article in The New York Times, "Under Trump, Worker Protections Are Viewed With New Skepticism," suggests that the Trump administration is pursuing a "significant relaxation in the government's approach to occupational safety." But executives in the chemical, manufacturing, construction, and other industries—as well as their health and safety managers, legal team and other advisors—should not assume that the Trump administration is offering a free ride on regulatory issues.

The tone of the article suggests that Trump will reverse or eliminate a variety of Obama-era industry standards, including reduced workplace exposure to beryllium, an industrial mineral linked to lung disease; and to silica, a mineral that has been linked to lung disease and to cancer.

The article also highlighted Trump's plan to delay a rule requiring electronic reporting and public posting of workplace injuries. Finally, experts quoted in it say proposed budget cuts could cloud the future of the Chemical Safety Board, which investigates chemical plant accidents, and an OSHA grant program that provides training to workers in industries with high injuries and fatalities.

Beryllium Exposure
The Obama administration's new beryllium standard reduced allowable eight-hour exposures from 2.0 micrograms per cubic meter of air to only 0.2 micrograms. Many experts agreed that a reduction was in order, but slashing it by a factor of 10—and expanding coverage to include the maritime and construction industries—could cripple businesses.

Some sources indicate that although President Trump may try to scale it back and exempt the maritime and construction industries, he can't just wipe out Obama's rule. With the rule already established as a "final standard," OSHA would have to first publish any new proposals in the Federal Register and cite a basis for any changes. Further, labor groups and others would likely mount legal challenges.

Silica Standard
There has been concern that exposure to silica in the construction industry leads to lung cancer and kidney and other diseases, but some industry advocates have argued that a significant drop in lung disease rates over the last 40 years suggests that stricter silica standards are not necessary. Still, Obama ordered a reduction from 250 micrograms per cubic meter of air for an eight-hour period to only 50 micrograms.

Compliance within the construction industry was originally scheduled to begin June 23, 2017, but OSHA recently announced that enforcement will instead start Sept. 23. The agency justified this delay by noting that "additional guidance is necessary due to the unique nature of the requirements in the construction standard."

The NY Times article suggests that this delay represents diluted enforcement, but OSHA has said that employers in the construction industry are still expected to continue to take steps to either come into compliance with the new permissible exposure limit, or to implement specific dust controls for certain operations. Consequently, it may be premature to assert that Trump will significantly weaken or eliminate the silica standard.

Electronic reporting, a Safety Board, and Training
The Times article additionally questioned the delay in implementing an OSHA requirement that forces certain employers to electronically submit job-related injury and illness data. OSHA did not explain the delay, which is unusual, but industry has complained that the Obama administration appeared to favor labor unions and the proposed standard would have given unions even more clout. Either way, given the lack of detail about the delay, it may be too early to speculate about the future of the electronic reporting initiative.

The alarm about Trump's apparent attempt to eliminate the Chemical Safety Board by yanking its funding may also be overblown, since a White House budget proposal is not the last word. Congress will also create its own budget, and the two sides will hammer out a compromise. So, the CSB is not dead in the water just yet.

Finally, concern over Trump's proposal to eliminate OSHA's Susan Harwood Training Grant Program may be misplaced because this proposal, too, will not be finalized until Congress speaks. Some advocates may be worried, but it's too early to mourn the program's demise.

So what should manufacturers, construction businesses, and other companies do right now?

First, perhaps they should refrain from overreacting to reports. Instead, organizations may wish to continue to keep track of developments and consult with their legal or other advisors before committing financial or other resources to a course of action.

Examining the individual issues, remember that the more-restrictive beryllium exposure standards have been effective since May 20, 2017—but because they are potentially subject to revision, there is some uncertainty about whether they will even be enforced in the interim. Accordingly, companies may wish to consider their potential exposure and, in consultation with their advisors, determine the cost and steps involved in modifying their processes. But since the effective date of the new silica standards has been delayed to Sept. 23, it may be prudent to hold off on making any changes until and unless further guidance is issued by OSHA.

As for the proposed electronic reporting rule, it's worth noting that the original plans called for certain companies to upload their reports to a new OSHA website. But since the site has not even been launched, there isn't much that companies can do right now. Similarly, no changes have yet been made to the Chemical Safety Board and the Susan Harwood Training Grant Program, so companies should not feel pressured to take any substantive action in that regard.

Under the Obama administration, industry advocates were concerned that the balance of power was being unfairly shifted to labor unions and other constituents. Now, with the Trump administration trying to call the shots, labor and other advocates fear that the balance could once again being shifted, but in the "wrong" direction. Perhaps both sides could take some time to gather information and study the issues before committing themselves to a course of action.

Veteran labor and employment attorney Joseph P. Paranac, Jr. is a Newark, N.J.-based shareholder in national law firm LeClairRyan, where he focuses much of his practice on OSHA, NLRB, and other administrative agency-related matters. He can be contacted at [email protected].

Posted on Jun 22, 2017