What to Expect From OSHA - An Interview With Eric Conn

This article has been reprinted from the June 8, 2018 NGFA Newsletter.

The following is an excerpt from an interview with Eric Conn, a foundting partner of Conn Maciel Carey in Washington, D.C., and chair of the firm’s national OSHA Workplace Safety Practice Group.

Q: Under the Trump administration, is OSHA more likely to focus on compliance assistance rather than enforcement until the new Assistant Secretary of Occupational Safety and Health is confirmed?

Will OSHA enforce current national, regional and local emphasis programs?

Conn: “There’s no mistaking that OSHA during the Obama administration was heavily focused on enforcement, almost to the exclusion of compliance assistance and cooperative programs.

"We saw significant increases in the number of inspections conducted, the average penalty per violation, the number of cases with cumulative penalties of $100,000-plus, the percentage of citations characterized as Repeat or Willful, nasty enforcement press releases, and criminal prosecutions.

“Certainly, the expectation after President Trump was elected was that enforcement across all executive agencies, including OSHA, would contract.

"Indeed, in all prior Republican administrations, OSHA has operated with more of a balanced approach between enforcement and compliance assistance, although never abandoning its enforcement mission.

"The tone of President Trump’s campaign, with repeated references to deregulation, suggested OSHA might move further from its enforcement mission than even prior Republican administrations.

“However, the present reality is that OSHA is operating like this is year 10 of the Obama administration.

"We still do not have a Trump-appointed OSHA administrator and OSHA appears to be fairly low on the priority list for this administration.

"With the career folks still essentially running the show, we have not seen any contraction in enforcement.

"In fact, last year, OSHA increased the number of inspections it conducted for the first time in several years and it issued more $100,000-plus citation packages than in the entire history of the agency.

“However, we have seen some encouraging signs of support for compliance assistance and cooperative programs, including, in particular the new Alliance between OSHA and the grain -industry through NGFA, as well as efforts to improve the VPP Program.

"But it still remains to be seen if the seismic shift in OSHA enforcement that many expected is ever realized.

"The Senate confirming President Trump’s choice for Assistant Secretary of Labor for OSHA would go a long way.”

Q: Can OSHA still enforce the safety incentive and drug-testing sections of the revised recordkeeping standard?

Conn: “Not only can OSHA enforce the new anti-retaliation elements of the Electronic Recordkeeping Rule, it is actively doing so right now.

OSHA has promised to revisit this rule and just sent to OMB for approval a notice of proposed rulemaking to do so.

Unless or until that new rule is proposed and finalized, and that rulemaking changes the anti-retaliation provisions, OSHA will continue to enforce those elements.

“However, OSHA has softened its interpretation around the two most controversial issues in those provisions – safety incentives and drug testing.

"Specifically, OSHA no longer outright prohibits safety incentives tied to lagging indicators, like injury rates.

"Such incentives are permissible now so long as they are coupled with program elements that promote and enforce the requirement to report all workplace injuries.

“As for drug testing, most work-related drug testing is unaffected by the rule (e.g., pre-employment and random drug testing), and now, OSHA also accepts post-injury drug testing so long as there is an investigative purpose for the test; i.e., drug use is a possible cause of the type of incident that occurred, such as crashing a forklift.”