Details
As President-elect Donald Trump's administration prepares for the transition on January 20, there could be a number of changes at the Occupational Safety and Health Administration (OSHA) in the coming months. Since Trump's candidacy for OSHA's deputy secretary of labor was never confirmed by the Senate during his first term, and OSHA's deputy assistant secretary of labor, Loren Sweatt, struggled with the pandemic during her term, it is difficult to predict what priorities might be be the new deputy labor minister. With Trump's nomination of Rep. Lori Chavez-DeRemer (R-OR) to head the Department of Labor (DOL), the future of the department is even more difficult to predict.
Chavez-DeRemer has a limited history of supporting prominent pro-union legislation — including her sponsorship of the Protecting the Right to Organize Act, which purports to repeal state right-to-work laws, and the Public Service Freedom to Negotiate Act. This would grant public servants certain rights to freedom of association and negotiation, even in states that do not currently recognize such rights – so one could speculate on a reasonably labor-friendly approach. Neither bill became law and draft bills change during the legislative process. Until we hear their testimony on the issues in these bills, we cannot understand their position on each of the individual provisions contained therein.
On other issues, Chavez-DeRemer has shown flexibility. She voted on January 12 for House Joint Resolution 98, which “provides for congressional disapproval of the rule submitted by the National Labor Relations Board pursuant to Chapter 8 of Title 5 of the United States Code.” [the] “Standard for Determining Joint Employer Status”; voted to block a rule that would have made it easier to classify companies as joint employers; and voted to prevent the Securities and Exchange Commission from requiring non-material disclosures, including consideration of environmental, social and governance elements in certain retirement investment decisions.
Chavez-DeRemer will likely have enough support on both sides to be confirmed, assuming she manages to get through the committee approval process.
OSHA rules and proposed standards you should be aware of
The walkaround rule we discussed earlier, which went into effect on May 31, remains a hotly contested issue. This rule allows third parties unaffiliated with the employer to participate in an OSHA inspection and has been revised to provide greater flexibility in who may be permitted to participate. A lawsuit has been filed in Texas challenging the rule changes. It has been fully informed and now we are just waiting for the decision of the district judge and the magistrate. If the result is positive for the federal government, an appeal can be expected. However, if the companies prevail, any further appeal by the government will depend on the decisions of the president and the labor minister.
Proposed standard for preventing heat injury and illness in indoor and outdoor work environments
This proposed standard was published in the Federal Register on August 30 and the public comment period has been extended. An informal public hearing is scheduled for June 16. Without an abrupt change, no rule will be enacted before Inauguration Day. Once the Trump administration is in office, OSHA may abandon this proposed standard or issue a new proposed standard that is more streamlined, as state plans in California, Minnesota, Washington, Oregon and Colorado already have standards that provide a heat injury prevention plan and diseases require. The current proposed standard requires employers to follow several detailed steps. OSHA has sued employers under the general duty clause in cases of heat-related worker injuries or deaths. The proposed Heat Injury and Illness Prevention Standard should be reviewed by companies whose employees work in environments with temperatures of 80 degrees or more, as OSHA may attempt to use it to demonstrate that knowledge of heat-related hazards is available and feasible means of doing so Reduction in a General Obligation Clause case.
Employers should take a look at OSHA's fact sheet on the proposed emergency response standard, which is currently in the post-informal hearing comment period through January 14. When companies rely on local fire departments for hazardous materials, confined space rescue, firefighting, etc. The proposed standard has caused an avalanche of concern among the Fire and Emergency Medical Services (EMS) community as it is likely to result in the closure of some units and at least longer response times is accepted. Again, it's hard to predict whether it will be issued as a final standard by Inauguration Day, but it could happen. We encourage employers to visit the fire and rescue departments they work with to assess their ability to comply with a standard that is lengthy and contains hundreds of pages of 22 private standards from the National Fire Protection Association for reference.