Seyfarth summary: With another dramatic shift from a pro-worker Democratic administration to a second Trump administration, we believe OSHA is likely to shift away from its current enforcement-heavy agenda and focus more on engaging with the business community.
As we try to anticipate the changes of a second Trump administration supported (albeit by very slim margins) by a Republican-controlled Congress, these are some of our predictions about what the future holds for employers on the OSHA front Trump administration could have ready in the coming second.
We know from the first Trump administration that the number of Occupational Safety and Health Administration (OSHA) inspectors and OSHA inspections declined significantly. During the Obama administration (2008–2016), the number of OSHA inspectors fluctuated but generally remained above 900, increasing to 1,059 inspectors from 2009 to 2011, then decreasing to 943 from 2011 to 2015, and increasing again to 952 inspectors in 2016 . However, by the end of fiscal year 2020, the final year of the first Trump administration, that number had fallen to 790. As of the end of 2023, there were 878 inspectors at OSHA, an increase of 11% over fiscal year 2020. The numbers are expected to fall back below 800, if not further.
We also know that the regulatory legal landscape is very different today than it was during the first Trump administration, due in large part to the Supreme Court decision Loper Bright Enterprises v. RaimondoNo. 22-451, 603 U.S. __ (2024). There, the Supreme Court ruled that courts, not authorities, are best placed to interpret ambiguous legal provisions, even in areas where the authorities' expertise lies. In doing so, the Supreme Court has prevented agencies such as OSHA from implementing its enforcement agenda based on the agency's own interpretations of the regulations.
With this in mind, and consistent with the incoming President's stated goal of a more limited federal government, including less federal government involvement in the workplace, we can expect the following:
- Fewer and slower inspections and a leaner regulatory agenda. During the first Trump administration, OSHA faced flat budgets in its early years and struggled to compete with the private sector for safety professionals when hiring compliance officers. The agency will most likely face the same pressures again during the second Trump administration. We also expect fewer new OSHA regulations, fewer OSHA priority programs that focus enforcement on specific hazards and industries, and fewer programmed inspection activities.
- Significantly reduced focus on whistleblower and anti-retaliation claims. The Biden administration invested significant resources in strengthening OSHA and Department of Labor whistleblower investigation programs. We expect that these efforts will be scaled back, perhaps returning to a more business-friendly Voluntary Protection Program (VPP) and cooperative compliance programs over time.
- Repeal of OSHA's heat safety rule. OSHA released its proposed heat safety rule and began accepting public comments in the summer of 2024. The rule would apply to all employers and would be triggered if employees are exposed to temperatures of 80°F for more than fifteen minutes in a given 60-minute period. The public comment period ends on December 30, 2024, and there will most likely not be enough time to consider public feedback and finalize the final rule before the end of the Biden administration on January 21, 2024. Republican elected officials have recently voiced opposition to heat illness protections, with the governments of Texas and Florida passing laws preventing municipal regulations regarding water breaks. Given the Trump Administration's anti-regulatory focus on a second OSHA, we expect OSHA to completely shut down the heat illness rulemaking process.
- Possible withdrawal of OSHA walkaround rule. On April 1, 2024, the Federal Register published OSHA's final rule revising its regulations regarding whom employees may authorize to serve as their representatives to accompany compliance officers during OSHA on-site inspections. The revised regulation clarifies that employees have the right to: a
non-employee, third party to be their representative during the physical tour. In doing so, OSHA has effectively indicated that non-union workers can expect assistance from unions during an OSHA inspection.
The rule is currently the subject of litigation in Texas; A coalition of trade associations has filed a lawsuit against OSHA, caption: United States Chamber of Commerce et al. v. OSHA, et al. Even if the Chamber of Commerce doesn't prevail, a Trump-controlled Labor Department could choose to withdraw the new rule. The deadline for congressional withdrawal under the Congressional Review Act has already passed.
- Executives with pro-business leanings oversee OSHA. During the Biden administration, the Labor Department was led by people with pro-worker ties: former union leader and Boston Mayor Marty Walsh and Julie Su, the former head of the California Labor and Workforce Development Agency who formerly worked as a civil rights lawyer. OSHA was led by Doug Parker, who began his legal career as an attorney with the United Mine Workers of America. President Trump will likely appoint an assistant secretary of labor for occupational safety and health who has ties to business, not unions.
However, employers will remember that OSHA went without a confirmed head of the agency throughout the first Trump administration, after President Trump nominated Scott A. Mugno, the former vice president of safety, sustainability and vehicle maintenance at FedEx Ground, to the role had. His nomination never received approval from the U.S. Senate, and Deputy Assistant Secretary of Labor Loren Sweatt remained at the helm of the agency until the Biden administration.
In a somewhat surprising move, President-elect Trump has nominated Republican Congresswoman Lori Chavez-DeRemer to be Secretary of Labor. Ms. Chavez DeRemer, who was defeated by her Democratic opponent in November, is considered a relatively pro-worker Republican and a former sponsor of the PRO Act, a legislative initiative during the Biden administration to protect union organizing rights. While Ms. Chavez-DeRemer may face opposition in the Senate, we expect she would be more receptive to union policy agendas, including maintaining OSHA's walkaround rule discussed above. President-elect Trump has not yet nominated an assistant secretary of labor for occupational safety and health; The candidate's choice could further clarify the agency's 2025 enforcement agenda.
- Focus on egregious and intentional offenders and limit penalties for first-time offenders and small businesses. While President-elect Trump has occasionally distanced himself from Project 2025, many believe it contains a reasonable forecast of the policy goals of the second Trump administration, including with regard to OSHA. Chapter 18 of the Plan, which focuses on the Department of Labor and related agencies, refers to OSHA as follows: (1) It proposes that Congress and the DOL “recognize small businesses that are first-time and willful violators of exempt from the fines imposed”. from the Occupational Health and Safety Administration”; (2) The DOL should clarify that a home office is not subject to OSHA regulations; (3) federal labor agencies should use their statutory discretion to “exempt small businesses from regulations whenever possible”; and (4) OSHA's focus should be on health and safety inspections of serious offenders. While we expect the Trump Administration to support a rule that limits OSHA penalties to small businesses receiving their first OSHA certification, we do not expect OSHA to support small employers in general industry and the Construction will be exempt from most OSHA standards.
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