February 14, 2017
House GOP Assesses How to Unburden Employers From OSHA Rules
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By Stephen Lee
House Republicans are weighing their options about how to ease the burdens worker safety laws impose on employers, Congressional staff members say.
“There are people who’ve worked at the Department of Labor for however many decades and can say, ‘This [rule] doesn’t work, we should take this one off the books,’” a House Republican aide told Bloomberg BNA. “So that’s the question. Is there something that refers to technology that’s outdated? We have lots of questions about consensus standards. A lot of them are outdated in the regulations. Are you going to use a newer standard? Does it make sense to update it?”
Broadly, Republicans support President Donald Trump’s efforts to repeal regulations, such as his executive order mandating that agencies must eliminate two rules for every new one they implement.
Less Shaming, More Cooperation
Under Trump, Republicans are hoping OSHA shifts toward a more cooperative posture with businesses, said David Sarvadi, an industry attorney with Keller & Heckman LLP.
"[OSHA has] done several things in preambles that are causing concern, especially for the small business owner who’s just trying to do the right thing and can’t hire five people to interpret the law,” the House aide said. “Let’s make it clear. Remove the hazard, fix the problem and prevent the injury from happening, rather than this constant drumbeat of, ‘We’re going to shame you.’”
The Republican staff member further said the majority of state plans are outperforming federal OSHA in keeping workers safe.
“We hope there’s a dawning of a new day,” the aide said. “We believe states can work better with OSHA, and can create clear rules of the roads for employers to follow in their state.”
De-Escalating Tensions
House Republicans will also use their clout to de-escalate political tensions in workplace safety regulation, staff members say.
Instead, Republicans will focus on modernizing and streamlining existing rules so they work more smoothly, the aide said.
“We won’t be politicizing the important issue of workplace safety, as the Democrats have been doing for years,” the aide said. “We want to have the right priorities and ensure the agency’s budget reflects those priorities.”
Broadly speaking, Republicans and businesses support the idea that politicization of OSHA ramped up under the Obama administration, said Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce.
“When you look at how the Obama OSHA acted, and the policies they pursued and the regulations they issued—which in various ways were not well supported or were driven explicitly by the unions’ interests—I think OSHA comes off looking far more politicized than it had previously,” Freedman told Bloomberg BNA.
To illustrate, he pointed to OSHA’s letter of interpretation that broadens the categories of people who can accompany agency inspectors during walkaround inspections. In Freedman’s view, that letter came in direct response to a union request.
“Where the interests of employers have been so completely ignored and dismissed, that leads OSHA to being seen as highly politicized and undermines their credibility that their actions are taken solely to increase worker safety,” Freedman said.
But Baruch Fellner, an industry attorney with Gibson Dunn & Crutcher LLP, said it will be nearly impossible to turn down the temperature on the overpoliticization of OSHA, especially with Trump in office.
“The politicization is too ingrained, it’s gone on too long, and the people involved on both sides of the issue are political animals first, last and always,” Fellner told Bloomberg BNA.
Travel Budget Under Scrutiny
Republicans also will push the agency to be more frugal. One place to look for savings could be the OSHA chief’s travel budget, according to the aide.
“Under the previous administration, the [assistant] secretary did a lot of international travel,” the aide said, referring to David Michaels, the former head of the agency. “Yes, the administration should learn best practices. But that money could also be used to hire additional inspectors or improve compliance assistance.”
But Michaels, now a professor at George Washington University, told Bloomberg BNA that very little of OSHA’s foreign travel came out of the agency’s own budget.
For example, the agency was asked by the State Department and the Bureau of International Labor Affairs to help improve worker safety in developing economies, such as China, Michaels said.
Dems Don’t Fear CRA
A separate House aide on the Democratic side predicted that Republicans won’t use the Congressional Review Act to claw back vulnerable OSHA regulations, such as the beryllium (RIN:1218-AB76) and recordkeeping (RIN:1218-AC84) rules.
“There’s so many tools at their disposal, why use the CRA?” the Democratic aide said. “They’re going to save it for things they really care about.”
Fellner agreed, saying Republicans will save the CRA for high-priority rules, such as those issued by the Interior Department and the Securities and Exchange Commission. If Republicans deploy the CRA too often, they risk energizing Democrats in opposition, Fellner said.
Moreover, the OSHA rules vulnerable to a CRA challenge “do not galvanize the kind of universal, ‘Are you kidding?’ reflections that ergonomics did,” Fellner said, referring to the 2001 Clinton-era rule that still stands as the only regulation ever shot down by the CRA.
Danger in Clawing Back OSHA Rules
The Democratic aide also said Republicans may commit a tactical error if they claw back rules such as the Mine Safety and Health Administration’s new standard that requires operators to inspect mines before workers start their shifts (RIN:1219-AB87).
“If Republicans want to go after the constituency that voted for them, be my guest,” the aide said. “Miners are the people whose cause you’re championing. But I do see a run at that.”
Former OSHA chief Ed Foulke, who led the agency under President George W. Bush, told Bloomberg BNA the same thing shortly after Trump’s election.
“If [Trump] attacked the agency, the counterattacks from unions and Democrats would be, ‘You don’t care anything about safety, you don’t care about keeping employees from getting killed,’” Foulke said. “And everybody likes safety.”
James Frederick, assistant director of the United Steelworkers’ health, safety and environment department, conceded that Republicans now have control of enough levers of government to scale back drastically on enforcement.
In workplaces where unions have tough contract language, workers can still force their employers to implement strong safety and health protections, Frederick told Bloomberg BNA.
“But a whole lot of workplaces don’t have that,” Frederick said.
Battle Over VPP
The Democratic aide also predicted that Republicans and their allies in the business community will push hard for legislation that requires OSHA to create a separate line item in its budget for the Voluntary Protection Program.
But Senate Democrats won’t agree to that unless the bill is part of a larger package that addresses longstanding concerns, such as tougher protections for whistle-blowers.
“We’ve been unable to engage the majority in anything like that,” the aide said.
Frederick conceded that Democrats in Congress are in a defensive crouch, and may have to fight for the best deal they can get in exchange for accepting the VPP line item.
“The calculus is probably there to come to the right balance,” Frederick said.
To contact the reporter on this story: Stephen Lee in Washington, D.C. at
stephenlee@bna.com
To contact the editor responsible for this story: Larry Pearl at
lpearl@bna.com
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