Pre-Labor Day Report Slams OSHA Rollbacks

In a pre-Labor Day report, the advocacy group Public Citizen accuses President Donald Trump of having broken his campaign promise that “the American worker will finally have a president who will protect them and fight for them.”

“The administration has scuttled or weakened several standards that help the U.S. Occupational Safety and Health Administration (OSHA) protect workers,” states Public Citizen in Workers Left Behind Under Trump’s OSHA.

The report contends that since Trump entered the White House, OSHA has been hampered by a lack of leadership, including the absence of a permanent administrator, as well as the lowest staffing level in decades. OSHA also lists vacancies for chief of staff and senior advisers. Meanwhile, as of January 2018, the number of inspectors declined from the previous year from 814 to 764. The low staffing levels are attributed in part to the hiring freeze the president implemented early in his presidency.

“According to Jordan Barab, former OSHA Deputy Assistant Secretary of Labor, some of OSHA’s regional staff cautioned that in the wake of the hiring freeze, OSHA’s enforcement and whistleblower programs were ‘falling apart at the seams’ and OSHA was ‘just bleeding,’” says Public Citizen.

Three Standards Affected

The main focus of the report is on regulatory rollbacks or delays implementing specific worker-protection standards, which OSHA has pushed through since the change in administrations. For example:

• OSHA’s 2016 Improve Tracking of Workplace Injuries and Illnesses rule requires certain establishments to electronically submit to OSHA data on injuries and illnesses that they are already required to keep. In turn, OSHA would make the pertinent data publicly available after it removed personally identifying information. In June 2018, OSHA announced it was reconsidering the rule, and while the reconsideration was ongoing, it would neither require nor accept the more detailed injury and illness data (from OSHA 300 logs and OSHA 301 incident reports). The following month, OSHA released a proposal to eliminate the more detailed reporting requirements altogether, retaining only the requirement for affected establishments to submit data from Form 300A, the Annual Summary of Work-Related Injuries and Illnesses. OSHA explained that the action is necessary to protect the privacy of workers. But according to Public Citizen, the privacy concerns ignore “decades of existing U.S. Department of Labor practices and the measures in OSHA’s original rulemaking to protect confidential information.”
• The Obama administration issued the Fair Pay and Safe Workplaces Executive Order (EO) in 2014 to require that federal contractors comply with workplace laws—including health and safety standards, wage laws, and civil rights laws—to be eligible for new federal contracts. In spring 2017, Congress and the Trump administration used the Congressional Review Act to overturn the EO, citing excessive costs and burdens. “In truth, the real cost is the one to taxpayers, as the government potentially contracts with unsafe establishments on the public dime,” states Public Citizen.
• In January 2017, OSHA issued a rule to modernize the beryllium workplace exposure limit in general industry, construction, and shipyard trades. The rule included new or revised provisions addressing personal protective equipment and medical monitoring. In summer 2017, OSHA proposed to rescind the portions of the standard that would have provided additional protections for construction and shipyard workers and delay the deadline for compliance with the remaining protections for construction and shipyard employees by 1 year. In March 2018, OSHA proceeded to delay enforcement of the primary standard that applies to all other workers by 2 months. In June 2018, OSHA proposed delaying implementation of certain supplemental requirements for nonshipyard and construction workers by 9 months. “Delaying the implementation of these vital protections would allow employers to continue to expose workers for an extended period to levels of beryllium that even OSHA acknowledges are harmful to health,” states Public Citizen.

Heat Stress et al. Unaddressed

The report also discusses the absence of OSHA standards covering heat stress, as well as risks to healthcare workers and meat-packing workers.

Public Citizen notes that while the Occupational Safety and Health Act’s (OSH Act) General Duty Clause is “well-intended” and can be used to take enforcement action against an employer even in the absence of a federal standard, the evidentiary burden to uphold employer violations of the Clause is much greater than would be the case when enforcing a specific standard.