As many of you who closely follow the headlines know, the biggest news this week was not that Donald Trump may spend the rest of his life in jail for hoarding, hiding, conspiring and lying about his precious documents, but the long awaited and highly anticipated release by the White House of the Spring 2023 Regulatory Agenda.
The big OSHA news coming out of the Regulatory Agenda is….nothing.
And by “nothing” I mean that it is now almost certain that OSHA will issue no major final health or safety standards during the entire first term of the Biden Administration — which will be catastrophic if there is no second Biden term. Catastrophic because Republican these days don’t do OSHA standards. So if, horror of horrors, Republicans retake the White House in 2024, we’re facing another 4 or 8 years with no new OSHA standards.
And whatever standards or regulations OSHA does manage to finalize, need to be issued by somewhere around the beginning of April of next year if they are to avoid possible repeal under the Congressional Review Act (CRA) by a Republican Congress and President after the 2024 elections.
Tough Times Require Strategic Focus
Now, let me say right from the start that this is not all OSHA’s fault. There was that pandemic — and 110% focus on COVID emergency standards to protect workers — that occupied most of the first year of the Biden administration. OSHA is also suffering from a significant budget shortfall. OSHA’s standards budget received a 10% cut in Trump’s first year and only this year caught up to the level it was at the end of the Obama administration.
Nor does this mean that OSHA staff haven’t been working incredibly hard over the past several years — first with COVID and then with other standards.
But is is partly OSHA’s fault.
As I’ve said many times before, tough times require strategic focus. And we haven’t seen much of that from OSHA.
The only thing that really matters at the end of an administration are final standards
The reason I’m being so tough here is that the only thing that really matters at the end of an administration are final standards issued before the CRA deadline. Once issued, final standards are almost impossible to repeal (after the CRA deadline).
Although OSHA boasts that they plan to issue a large number of regulatory proposals before the end of this Presidential term, a) that remains to be seen, and b) so what? Proposed standards can be withdrawn by the next administration. It’s takes a bit more work than deep-sixing a standard that hasn’t reached the proposal stage, but not that much.
Complicating the problem is that the White House has put a hold on all Department of Labor regulatory activity pending the confirmation of Acting Labor Secretary Julie Su — which has been drawn out by resistance from Republicans, the business community and a few Democrats.
OSHA Regulatory Process
Let’s look at some of the individual major standards that OSHA is working on, with the dates that they first appeared in the regulatory agenda.
But first, allow me to repeat a short primer in process OSHA uses to issue safety and health standards. There are basically 4 major steps in issuing an OSHA standard: 1) Collecting information in the form of a Request for Information (RFI) or Advance Notice of Proposed rulemaking (ANPRM), 2) SBREFA (the small business review process), 3) A proposal, or Notice of Proposed Rulemaking (NPRM), followed by comments, hearings and more comments, and 4) A final standard.
All of these steps are usually separated by several years and both the proposal and the final standard are subject to several months of White House review before issuance. And because most take more than 8 years from beginning to end, it is often difficult to launch and complete a major standard within a 2-year Presidential Term.
OSHA also issue regulations that normally deal with process or recordkeeping issues. For example, listed below are recordkeeping and walkaround “regulations.” They are far less burdensome and quicker than the process OSHA has to go through to issue a health or safety standard.
Spring 2023 Regulatory Agenda
Infectious Diseases (2009): This standard was originally launched in response to the 2009 H1N1 pandemic. SBREFA was completed in 2014, but work on the standard stopped during the Trump administration and then was side-tracked during the Biden administration in favor of a permanent COVID healthcare standard (that will likely never be issued). A proposal is planned for March 2024. I’ll believe it when I see it.
Process Safety Management (2014): PSM regulates safety in chemical facilities. It has now been over ten years since the West Fertilizer explosion that killed 15 and destroyed much of the city of West, Texas. In response, President Obama directed OSHA to modernize PSM. No significant progress has been made since SBREFA in 2016 except a recent stakeholder meeting whose only purpose was to show that OSHA was “working” on it. Otherwise, OMB rules would have relegated it onto the dreaded “Long-term” agenda.
Emergency Response (2014): This would set uniform standards for all emergency response workers, rather than the patchwork that now exsists. SBREFA was held in November and OSHA is planning to issue a proposal by November. Too late for a final standard this administration.
Communication Tower Safety (2015): SBREFA was finished in 2018 and a proposed standard is scheduled for March 2024.
Workplace violence (2016): This was one standard that the Trump administration continued to work on (without any progress.) The SBREFA meetings have finally taken place but, OSHA is still analyzing the results. No proposal is likely before the end of the term.
Tree Care (2016): SBREFA was completed in 2020 and a proposal is planned for the end of this year.
Biden’s OSHA will likely have the same regulatory output as the Trump administration: Zero health and safety standards.
Worker Walkaround Representative Designation Process: This codifies an legal interpretation issued during the Obama administration (and rescinded by Trump) that would allow employees to designate representatives to “walk around” with OSHA inspectors during and inspection even if there is no union. It is a procedural regulation, not a health or safety standard, which means it won’t take as long to finalize. A proposal is planned for this month. It could be finalized before the end of the administration, but unlikely before the April 2024 CRA deadline.
COVID-19 in Healthcare (2022): This was to replace the 2021 Emergency Temporary Standard (ETS) that expired and the other “test or vaccinate” ETS that was overthrown by the Supreme Court. Given that no one really wants to think about COVID-19 these days, it is unlikely that it will ever see the light of day.
Heat (2021): SBREFA is scheduled for August. We’ll see.
Tracking of Workplace Injuries and Illnesses (2022): This would essentially restore an Obama-era regulation, repealed by Trump, that would require some employers to send detailed injury information to OSHA, with some enhancements. OSHA estimates that it will issue a final rule this month. Seems unlikely, but hopefully by the end of the year.
The only health standard scheduled for final issuance is an update of OSHA’s Hazard Communication Standard. Nice, but no big whoop.
MSHA also has a few standards on the agenda, including one that would provide mineworkers with the same protection from silica dust that general industry and construction workers received from OSHA in 2016. Mineworkers are facing a resurgence of a particularly virulent form of black lung disease due to silica dust. A proposal is scheduled for this month, but may be held up pending the Julie Su confirmation battle. MSHA standards can progress faster than OSHA’s, but it’s still unlikely it will be issued before the end of the administration, and certainly not before the CRA deadline.
Things are unlikely to get better in the near future. OSHA’s budget woes will only get worse with for at least the next two years after the debt ceiling battle and upcoming appropriations wars. And Presidential administrations are often reluctant to issue too many major standards in closely fought re-election years.
To sum up, assuming the COVID-19 standard will not be issued, Biden’s OSHA will have the same regulatory output as the Trump administration: Zero health and safety standards, although hopefully the walkaround and recordkeeping regulations will be issued before the April 2024 SBREFA deadline. Those would not be nothing.
The administration is basically placing a big bet on a second Biden administration. If that happens, we could conceivably see multiple final standards issued after 2024, assuming politics, budgets and the stars align.
If they lose the bet, workers lose. Big time.