As President-elect Joe Biden prepares to take office, it’s worth asking what OSHA might look like under his administration, especially as compared to the last four years under President Donald Trump’s “regulation roll-back” agenda.

This article takes a summary look at the subject and argues that employers should expect a return to increased enforcement efforts & expansion of occupational health and safety regulations in the coming years.

Background

As we know, Joe Biden served as Vice President during the 8 year Obama administration, so trying to predict what OSHA might look like over the next 4 years isn’t very difficult. In other words, there’s little reason to believe that Biden’s policies won’t mimic Obama’s “OSHA blueprint” which strongly supported Democratic values including worker’s rights and health & safety protections.

In order to make the case, the article will focus on comparing Obama’s OSHA vs. Trump’s, and how the differences will likely predict the future.

Comparing Obama vs. Trump OSHA policies

Head of OSHA appointees

The Obama Administration appointed Dr. David Michaels to head OSHA in 2009. According to the Milken Institute School of Public Health’s website, “Michaels is an epidemiologist with extensive experience in research, regulatory and public policy, and program administration.”

Under Michael’s leadership from 2009 until 2017, OSHA instituted significant enhancements to OSHA regulations, including a major focus on enforcement.

Trump attempted to appoint Scott Mugno to head OSHA in 2017, however Mugno withdrew himself from consideration in 2019 and the administration never managed to fill the post.

Mugno previously held the position of managing director for FedEx Express Corporate Safety, Health and Fire Protection, and is on record wanting to roll-back OSHA oversite.

As a result of the Trump administration’s failure to fill this post, there haven’t been any major OSHA enhancements or improvements for the past 4 years, but there have been some worrying developments. See below for details.

Conclusions

Whereas Obama appointed an “academic” to lead OSHA, Trump appointed an “industry” candidate who he hoped would help with his “regulation roll-back” agenda. Look for Biden to reverse this trend & install another academic, safety focused leader, or a past Obama era leader. Could Michaels make a return to the administration?

Enforcement

OSHA fine increases

Obama: On August 1^st, 2016 OSHA increased OSHA fines by 78% to account for inflation. Maximum for “Serious” violations jumped $7000.00 to $12,471 & “Willful” & “Repeat” violations from $70,000 to $124,709.  New increases will continue every year to account for inflation.

Trump: Trump didn’t attempt to stop or change these fine increases, and they have continued to increase each year.

Deterrence

Obama: Dr. David Michaels instituted a new aggressive enforcement deterrence policy which he called “Regulation by Shaming.” According to Michaels, “the most effective means for OSHA to encourage elimination of life threatening hazards is to publicize the names of violators, especially when their actions place the safety and health of workers in danger.” OSHA “will issue more hard-hitting press releases that explain more clearly why we cited a specific employer.”

According to a study of the “Regulation by Shaming” policy, conducted by Duke University economist Matthew Johnson, the policy was effective in reducing workplace safety violations near the violating company’s location. “The study found that a typical press release produced a 73% reduction in safety violations at similar workplaces within a 5 km radius. For workplaces within 10 km, the reduction was about 36%, and remained around 30% for workplaces within a 50 km radius.”

Trump: Not surprisingly, Obama’s “regulation by shaming” policy was ended in early 2017.

Conclusions

Based on the report findings, and Obama era policies, it wouldn’t be surprising to see the Biden administration return to this “regulation by shaming” deterrence strategy beginning early next year.

“Significant enforcement cases”

Obama: A “significant enforcement case” is defined by an enforcement inspection which results in greater than $100,000 in total fines and result from “comprehensive” inspections, often including “Willful” and/or “Repeat” violations. These cases increased by > 100% from 2007 to 2011, and continued to rise during the Obama administration.

Trump: The greatest number of these enforcement cases occurred in 2017 under Trump’s first year, at 218 cases, but then dropped significantly to 168 the following year. According to Deborah Berkowitz, of the National Employment Law Project, the “number of complicated and high-penalty cases have been dramatically reduced” since 2018 to less than ½ compared to previous years.

Conclusions

Just as “Enforcement by Shaming” provides a major deterrence for ignoring safety rules, “comprehensive’ inspections resulting in $100,000+ fines will certainly accomplish the same. Look for a return to more of these major enforcement fine cases.

Worker Rights & Increase in “Employee Complaint” Inspections

Obama: From 2009-2017, the % of enforcement inspections triggered by an employee complaint increased from 17% to 25%. This increase reflected the Obama administration’s commitment to worker “whistleblower” protections.

Trump: I couldn’t find any related statistics for 2018, 19 & 20, however Trump ended the “Whistleblower Protection Advisory Committee,” and 4 other key occupational health & safety advisory committees early in his administration as part of his regulation roll-back agenda.

Conclusion: Look for a strong return to employee whistleblower protections, and likely increases in the % of OSHA inspections triggered by employee complaints.

Expanded OSHA Health & Safety Standards

Obama: The following OSHA standards were greatly expanded or enhanced during the Obama administration, each of which resulted in major improvements to worker health and safety.

• Hazard Communication
• Walking & Working Surfaces
• Reduced Silica & Beryllium exposure limits
• New Electronic Injury and Illness Reporting Requirements

Trump: In reviewing OSHA’s unified agenda from 2017 to present, and having been monitoring changes carefully during this period, it’s clear that no similar improvements or enhancements have been achieved during the Trump administration. However early in the administration, serious attempts were made to undermine the new Electronic Injury and Illness Reporting requirements and other pending OSHA standard improvements have been stalled.

Conclusion: As of this writing, there are 25 pending, proposed OSHA standard updates in various stages of approval on their agenda. Given the lack of progress over the past 3-4 years, expect the Biden team to attack this agenda and issue significant improvements/enhancements similar to what happened during the Obama years.  https://www.osha.gov/laws-regs/unifiedagenda/currentagenda

Other Trump OSHA concerns/accusations

Aside from these specific comparisons to Obama’s OSHA, the following concerns have been documented by Deborah Berkowitz, from the National Employment Law Project.

She argues that despite over 5,000 workplace fatalities and over 3 million serious injuries and illnesses in 2017, “New data just released by OSHA reveals that safety enforcement activity continues to decline under the Trump administration, dropping in FY 2017 and falling even further in FY 2018. The number of complicated and high-penalty cases have been dramatically reduced. The agency also revealed that the number of OSHA inspectors under the Trump administration is now at a historic low (ie: lowest in the agencies 48 year history). This is not just from budget cuts, but from a failure to fill vacancies in a timely manner.” She goes on to say that literally zero new inspectors were hired by OSHA in 2017, and provides additional information & data to support all of these claims.

What to look for

Between now and the inauguration, the Biden administration will be busy vetting, appointing and announcing key cabinet positions. As of this writing, he is already appointing Obama era candidates.

When it comes to OSHA, the Department of Labor appointee will be key. It’s almost certain that the appointee will have a strong track record of supporting worker rights and protections, who will then appoint an equally committed Assistant Secretary of Labor for Occupational Safety and Health to run OSHA. It will be interesting to see if Dr. David Michaels returns to the post, or if someone equally, or even more aggressive will be appointed to the post.

I’ll be monitoring the situation carefully and will report on this blog when appointees are made.

How employers should prepare

Given the strong likelihood of a return to enhanced OSHA policies under the new Biden administration, employers should carefully consider and evaluate the current condition of their workplace health and safety programs, and make adjustments and improvements where needed.

Getting the call from the front desk that “OSHA’s in the lobby” is arguably one of the biggest worries, and nightmares, to any businesses big and small. The only hedge against this very real and potentially damaging risk is to be prepared by implementing and managing a strong and compliant OSHA health and safety program.