President Trump’s impact has been felt across all federal agencies -- whether as a result of proposed budget or strategic direction changes. At Federal OSHA, implementation or enforcement of regulations regarding beryllium, silica, and electronic injury/illness reporting has been delayed and aspects of these regulations may be reconsidered. Standard-setting for combustible dust and hearing protection in construction have been scrapped. 

OSHA’s regs and enforcement have framed health and safety work for decades. If OSHA reduces its regulatory activity (delaying or reversing current regulations) and moves toward technical assistance, what might the impact be?

A path less taken

Given the orientation of the Trump administration, can you think of circumstances where complying with each aspect of a safety regulation does not provide meaningful benefit to workers or your company -- and may divert resources that could be better used elsewhere? 

What if you had the flexibility to implement a “guideline,” rather than a regulation?

What if….

Re-imagining OSHA using this scenario would be useful to health and safety professionals. What if the majority of OSHA regulations became guidelines (exceptions would be health standards designed to protect against chronic or long-term health effects)? Injury and illness prevention could be an overarching standard. OSHA would require companies to implement health and safety management systems that prevent injuries and illnesses. 

Businesses would still be required to maintain and submit the OSHA 300 log -- but now would pay a fine for each listed injury/illness. The fines could be scaled based on size of the organization, but would be large enough to get management’s attention.  Companies could perhaps receive a waiver for a fine if they fixed the condition that was determined to have been a significant cause of an injury.

A certain percentage of companies could be subject to OSHA audits under this scenario, similar to the way the IRS audits taxpayers. Fines associated with injuries or illnesses left off the log, and discovered by audit, would be doubled. Failure to submit a log altogether would carry possible criminal penalties for senior management.

Some OSHA resources currently dedicated to enforcing OSHA safety regulations could be diverted to assist companies as they implemented injury prevention programs.

Pros and cons

I’ve informally surveyed our Phylmar Regulatory Roundtable (PRR) members about this scenario; they had several different reactions. (PRR is composed of senior health and safety professionals from Fortune 1000 companies). Some members thought their company’s approach to safety would not be much different; they already use a risk-based approach that doesn’t lean much on OSHA compliance to drive safety programs. Other PRR members, who typically have health and safety expertise and resources, believed their companies would benefit from an OSHA focused more on technical safety assistance and less on enforcement.

The idea of fines based on OSHA 300 logs resulted in the most controversy. Some thought these fines would result in a stronger argument for supporting prevention programs. Several members were concerned that the threat of fines for OSHA 300 injuries/illnesses would suppress reporting, making the job of the health and safety professional harder. 

This brought up the issue of “equity” around OSHA 300 log reports. One member, working in a union environment, believed that their company records injuries and illnesses other companies do not, and thus would experience higher fines. At least one PRR member raised the issue of employee responsibility for actions that result in an OSHA 300 injury -- is it fair for companies to be fined for employee-caused events no safety program could ever control? 

This “what-if” scenario also highlighted legal issues with employee injuries. Would companies be liable for injuries caused by their decision not to conform to a guideline?  Would workers’ compensation remain the sole remedy or could employees sue companies in such a situation?

Your relationship with OSHA

Would a lack of specific regulations with associated penalties for non-compliance as outlined above make your job easier or more difficult? 

How big a role does the OSHA compliance “stick” play in your company as incentive or motivation for your safety programs? Is management motivated by it? Or is the company’s safety culture more influenced by employee attraction and retention, by its reputation, or by workers’ compensation costs?

Change is ahead for OSHA in the Trump administration. It may be a good time to consider your relationship with OSHA -- how it influences the health and safety programs you develop and implement for your organization. With clarity about how OSHA supports or hinders your work, you will be ready to adjust as the agency responds to the Trump administration.

What do you think?  Please write me at mkatchen@phylmar.com.