The ABA – OSHA Committee held its 2017 Midwinter Meeting in Jupiter Florida from March 7 – 10. It was well attended by OSHA practitioners across the country including many prominent government attorneys including: Susan Harthill, Deputy Solicitor for National Operations; Thomas Galassi, Director, Directorate of Enforcement Programs, OSHA; the Honorable Covette Rooney, Chief Judge, U.S. Occupational Safety and Health Review Commission; and Heather MacDougall, Acting Chairperson, Occupational Safety and Health Review Commission.
Many in the audience wondered how the new Administration might affect OSHA in the next four years. As expected, the typical response from the government side was business as usual with one government attorney commenting, “smaller but mightier.”
The various panels throughout the conference discussed timely OSHA issues (many of which have been covered in prior blogs here) including the new electronic recordkeeping rules, annual indexing of penalties, developments in process safety management, criminal prosecutions following workplace fatalities, targeted enforcement initiatives and anti-retaliation issues.
During one panel which discussed legal issues arising from OSHA inspections, there was a particularly lively exchange between management attorneys and OSHA representatives on two specific issues: 1) the right of non-employee, union representatives in a non-union worksite to participate in a walk-around inspection and 2) the right of hourly employees to have a management representative participate in an OSHA interview. Read More
The United States Department of Labor announced another proposed delay of the rule entitled, “Occupational Exposure to Beryllium” from March 21 to May 20. Beryllium is a material that can cause lung disease. The proposed delay is intended to give OSHA an opportunity to further review and consider the rule in conformance with a recent White House memorandum which directed the Department of Labor to undertake a review of any new pending regulations and temporarily postpone the date that they would take effect.
In a prior blog we discussed OSHA’s new electronic recordkeeping rule which requires, among other things, certain employers to submit injury and illness data.
Congress granted the Secretary of Labor the authority to enter places of employment to conduct safety and health inspections. The OSH Act provides that such inspections must take place at reasonable times, within reasonable limits and in a reasonable manner and that they may include inspection of relevant conditions, structures and other equipment. For a general description of the inspection process, OSHA has published a Fact Sheet which is available 
In a prior blog, we discussed OSHA’s recently enacted anti-retaliation rule which says, among other things, that employers cannot deter injury and illness reporting or retaliate against employees for such reporting. The rule itself does not expressly address drug-testing but the preamble makes clear that OSHA believes mandatory post-accident drug testing would be retaliatory. However, OSHA further stated that mandatory post-accident drug testing to comply with the requirements of a state or federal law or regulation is permissible. Mandatory post-accident testing to receive workers’ compensation discounts is also lawful. In other words, such testing would not be retaliatory because there is a lawful and valid reason that permits or requires such testing.
As of January 13, 2017, employers will be subject to higher fines for safety and health violations but not by much – 1.01636 percent to be precise. The increase matches the annual consumer price index by the federal government as of October 2016. The new maximum OSHA fines are:
In the last blog, we took a look data showing a decrease in OSHA workplace safety and health inspections in 2016. Although this may be true for safety and health inspections, it is certainly not for whistle-blower investigations which continue to rise. Some may not be aware that OSHA enforces and investigates claims under 22 different federal whistleblowing laws including, among others, Section 11(c) of the OSH Act, the Safe Drinking Water Act, Sarbanes-Oxley, the Surface Transportation Assistance Act and the Consumer Financial Protection Act of 2010.
There are lot of questions about how the Trump administration will affect OSHA in the next four years including who will lead the agency. The President has already implemented a federal hiring freeze although there are some exceptions built into the mandate. However, it is probably a safe bet to assume we probably will not see an increase in OSHA enforcement and most likely a shift from enforcement to compliance assistance as federal budgets will likely shrink.