What’s Next at OSHA: Workplace Safety Regulations Under Scrutiny
“The Occupational Safety and Health Act of 1970 is repealed. The Occupational Safety and Health Administration is abolished.”
Those are the words of Congressman Andy Biggs (R-AZ) when he introduced H.R. 86 on the floor of the House of Representatives.
On his Inauguration Day, President Trump issued a memorandum restricting the heads of executive departments and agencies from proposing or issuing “any rule in any manner… until a department or agency head appointed or designated by the President… reviews and approves the rule.” The memorandum appears to freeze several pending OSHA proposed rules, including “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” and the “Emergency Response Standard,” both of which are pending public comment.
President Trump also issued Executive Order 14192 (“Unleashing Prosperity Through Deregulation”), which would require all federal agencies, including OSHA, to essentially funnel regulations through the Director of the Office of Management and Budget (OMB). The OMB director is required to determine that the “total incremental cost of all new regulations… shall be significantly less than zero” before agencies can proceed through the administrative adoption process. It also requires to identify at least 10 existing regulations to be repealed before they promulgate or propose a new regulation for notice and comment.
H.R. 86 is unlikely to pass. Congressman Bigg’s first attempt to repeal OSHA in 2021 failed. Trump’s authority to stop OSHA’s rulemaking processes and steer proposed regulations through the OMB director is likely to be challenged in court, and an injunction of some sort is possible.
It is probable, for example, that one or more agencies challenges President Trump’s efforts as an overextension of executive power. A federal court may issue an injunction staying one or more of President Trump’s actions pending litigation, which would almost certainly end up in the Supreme Court of the United States.
What’s Next for Employers?
Employers in so-called “state plan states” must be aware of the intersection between federal OSHA regulations and their state agencies, such as Virginia’s Occupational Health & Safety Administration, a branch of the Virginia Department of Labor and Industry.
State plans are approved by federal OSHA and have a set period of time to adopt either the standards promulgated at the federal level or ones deemed “at least as stringent.” It does not appear that any of the recent activity at the federal level should impact recently adopted Virginia workplace safety standards, including the Final Rule Regarding Walkaround Worker Representative Designation Procedures and Federal Identical General Industry Standards, issued on November 11, 2024.
However, assuming the OSHA heat injury and illness protection and emergency response standards eventually proceed, they would then be subject to any state-plan adoption process. Compliance deadlines for employers in state-plan states are likely farther off than for employers in federal OSHA states, assuming these standards pass at the federal level.
How Should Employers Respond to Possible OSHA Changes?
OSHA is unlikely to disappear entirely, so employers should remain focused on compliance to avoid penalties, citations, and potential lawsuits.
The key steps employers should take now:
- Regularly review federal standards, and in state-plan states, state-specific safety standards
- Conduct periodic safety audits to ensure compliance with applicable standards
- Train employees on all applicable job site standards and compliance expectations
- Seek legal counsel about any ambiguities regarding compliance
Woods Rogers attorneys are here to help you monitor and understand the rapid changes coming from the new presidential administration. If you have questions about OSHA changes, please contact the authors of this alert, your Woods Rogers attorney, or any member of the Labor & Employment and Construction & Government Contracts teams.
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