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January 11, 2017
Workplace safety: Looking forward to 2017
By Ana Ellington, Legal Editor

The new Trump administration taking over this year will likely affect the Occupational Safety and Health Administration’s (OSHA) rulemaking and enforcement in the coming years. We know that Trump campaigned on creating jobs and reducing the regulatory burden on business—but we don’t know how this will impact workplace safety and health regulations.

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Standards that may be affected include the walking-working surfaces and fall protection standards, the respirable crystalline silica rule, and the electronic recordkeeping rule—all were finalized in 2016—and the beryllium rule released this month.

We’re not sure of President Trump’s position on these regulations. Because of the number of violations pertaining to falls in general industry from ladders and scaffolds, it is not surprising that OSHA decided to finalize the walking-working surfaces and fall protection standards. But the fact that falls in the workplace result in fatalities and this rule could save lives, may save this rule from the chopping block.

Some believe that Trump may seek to withdraw or modify the electronic recordkeeping rule particularly because of the uncertainty among industries regarding what constitutes a violation of the antiretaliation provisions. These provisions require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; it clarifies that employers cannot deter or discourage employees from reporting by an unreasonable procedure; and incorporates the existing statutory prohibition on retaliation against employees for reporting a work-related injury or illness. But there is concern because certain disciplinary, drug-testing, and safety incentive programs or policies could potentially violate the antiretaliation provisions. OSHA’s stance on this is unclear.

Now, the silica rule could likely be in the cross-hairs. The rule creates a significant financial burden on the construction industry to comply with the permissible exposure limit (PEL) of 50 micrograms of respirable crystalline silica per cubic meter (µg/m3) of air as an 8-hour time-weighted average (TWA). Currently the PEL is 250 µg/m3. Compliance for the construction industry begins June 23, 2017.

The new occupational exposure to beryllium rule may also be targeted by the administration considering it was published in January before President Trump’s inauguration.

However, withdrawing or amending a regulation is time-consuming. Some experts suggest that Congress may seek to overrule on an OSHA standard using the Congressional Review Act (CRA). But this is a risky action because it can only be used to repeal a regulation in its entirety—it cannot amend the regulation. The only time Congress used the CRA was to overrule the ergonomics standard at the end of the Clinton administration.

Although we don’t the know the direction OSHA will take with the Trump administration, it’s wise for employers to meet all the upcoming deadlines and comply with the OSHA requirements. Employers should address deficiencies in all of their safety and health areas. The safety and health of employees should be a priority regardless of what happens with OSHA’s rulemaking and enforcement with the new administration.

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