BREAKING NEWS: The Fall 2023 Regulatory Agenda has been released!
And that’s pretty much the beginning and end of the story. To repeat what we said when the Spring 2023 Regulatory Agenda was released,
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 Republicans 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.
That means no Workplace Violence standard, no Infectious Disease standard, no standard updating the Process Safety Management Standard, and, of course, no Heat standard.
The theory that has been steering OSHA is that instead of issuing any permanent standards, it would put all of its resources into issuing several major proposals, and then be poised to finish those off in the early days of a second Biden term, assuming the forces of fascism are defeated next November.
The proposal for a comprehensive Infectious Disease (in health care) standard — started in 2009 — is scheduled for June 2024. The long-awaited COVID-19 health care standard is currently is still technically under White House review, but I don’t think there’s anyone who believes it will ever be issued. No one wants to think about COVID any more.
There is no date for a Workplace Violence proposal. OSHA began work on that standard in 2016. They still analyzing the SBREFA (small business) report. And there is no visible progress on updating the Process Safety Management standard.
Heat ambles along. SBREFA has been finished and OSHA is analyzing the SBREFA report, but finalizing it will take several more years at best (or decades, depending on how many do-nothing Republican administrations we see in the next couple of elections.)
OSHA is predicting proposals for Tree Care (January 2024) and Emergency Response (Last Month) and Communication Tower Safety (March 2024)
Good News
There is some good news, however. OSHA has issued its Tracking of Workplace Injuries and Illnesses regulation. This regulation essentially restore an Obama-era regulation, repealed by Trump, that would require some employers to send detailed injury information to OSHA, with some enhancements.
And OSHA has issued a proposal for its revision of its Walkaround Representation Designation Process which will hopefully be issued early next year.
Both of these are important. Note that both of these are OSHA regulations, not health and safety standards. Regulations, which generally address OSHA procedures, are much easier to issue than health or safety standards. There are fewer legal and procedural requirements and they tend to mover much faster than standards.
Also, MSHA is scheduled to issue its long awaited and very overdue revision of its Silica Standard in April 2024. Coal miners are experiencing a sharply rising rate of a very severe form of Black Lung disease caused by silica exposure during mining operations.
Not So Fast
Color me skeptical on most or all of these deadlines. First, OSHA almost never meets its regulatory deadlines. (They’ve already blown through the Emergency Response deadline.)
Second, with every agency rushing to finish regulations, the review pipeline at the White House gets more and more clogged.
Finally, at some point before Presidential elections, the White House gets nervous about any major final standards/regulations — or even news-making proposals — and shuts down agency’s regulatory initiatives.
Especially with all of the current dissatisfaction over the economy, the Biden campaign will get very sensitive to accusations of “job killing” regulations that are “strangling” small businesses and violating business’s God-given right to do whatever the hell they want. They’ll demand quiet until the election is over.
When that cut-off date arrives, no one knows.
The other problem, is that for final standards (like Walkaround), to be safe, OSHA doesn’t really have until Inauguration Day. If final standards or regulations aren’t issued by sometime around April (roughly), they may be subject to repeal under the Congressional Review Act if Republicans take both Houses of Congress and the White House next year.
And, again, if we have a Republican administration, all of the proposals that OSHA manages to issue will be for naught. Republicans don’t do OSHA standards anymore — unless ordered by the courts.
Of course, if Trump is re-elected, the inability to issue new OSHA standards may be the least of our problems.