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Ferguson: Reading the Tea Leaves: The Trump Administration and OSHA

Thursday, December 1, 2016 | 1470 | 0 | 0 min read

Employers are in a state of limbo between one presidential administration and another, trying to intuit the potential impact as potential names of candidates for the cabinet and key administrative posts are floated, debated and named. Much is still in the realm of speculation.

Julie Ferguson

Julie Ferguson

One thing is becoming clear: Despite the ambiguity that Trump’s recent comments about possibly preserving some parts of Obamacare, it’s clearly on the chopping block. Any doubts were laid to rest in naming Rep. Tom Price of Georgia as the secretary of Health and Human Services. An orthopedic surgeon, Price is an ardent foe of the Affordable Care Act. He is likely to set his sights on Medicare and Medicaid, too.

But what of other workplace issues? A key indicator will be naming a prospective S\secretary for the Department of Labor. Several names have been floated, but as of this writing, no definitive pick has been named. Pennsylvania Congressman Lou Barletta has been cited by many as leading the pack of those under consideration. There are some reports that he has been offered the position, but no confirmation yet.

Other possible contenders include Andy Puzder, CEO of CKE Restaurants (parent company of Carl’s Jr. and Hardee’s), and Victoria Lipnic, a commissioner on the Equal Employment and Opportunities Commission and former assistant labor secretary under President George W. Bush. Wisconsin Gov. Scott Walker’s name has also been raised by some, a selection that would be chilling to labor unions.

At EHS Today, Sandy Smith offers a not-to-be-missed insider view of "Transitioning to a Trump Administration: What It Could Mean for the Department of Labor and OSHA."

Her article offers informed perspective by former Assistant Secretary of Labor Edwin G. Foulke Jr., who spearheaded the Occupational Safety and Health Administration under Bush. He also was the chair of Occupational Safety and Health Review Commission (OSHRC) during the transition from President George H.W. Bush to President Bill Clinton.

Foulke talks about the immediate process, offering a detailed look at the steps and timeline involved in the transition. He also offers his thoughts on what labor and OSHA issues he expects that the Trump administration will revisit. Here are the items he lists, but click through for the details.

  • Walking-working surfaces standard.
  • Respirable silica standard.
  • Recording and reporting occupational injuries and illnesses.
  • Whistleblower statutes.
  • Increased OSHA penalties.
  • OSHA enforcement.
  • Non-company personnel participation in OSHA inspections.
  • Restroom access for transgender workers.
  • Compliance assistance.
  • Fair pay and safe workplaces.
  • The Occupational Safety and Health Review Commission.

For another take on this, labor and employment law attorney Mark S. Kittaka also looks at Trump’s potential impact on OSHA in an article in the National Law Review. Kittaka rehashes some of Trump’s stated priorities and notes that:

“Even without changing a single regulation, Trump could simply limit OSHA’s enforcement ability by cutting their budget. This was a tactic used by President Ronald Reagan and with a Republican majority in both the House and Senate, this is a distinct possibility.”

He identifies the following areas as likely to come under scrutiny:

  • Electronic record-keeping/non-discrimination provisions.
  • Record-keeping as a continuing violation.
  • Silica.
  • Interpretation letters.

In other news, CNN reports that Trump will tap billionaire Wilbur Ross for Commerce secretary. As the administration’s chief business advocate, he’s the type of appointment Trump promised: a non-politican executive from the business community. Ross would be expected to help Trump reshape global trade and revive steel and coal, both industries in which he has experience.

But in coal industry, there were some problems. According to CNN:

Ross’s foray into the coal industry, however, ran into trouble in January 2006 when 12 miners were killed after an explosion at the Sago Mine in West Virginia. His company, the International Coal Group, had taken over the mine a couple months earlier.

According to federal reports, the mine had recorded 96 safety violations in 2005 that were deemed “serious and substantial.” The mine was fined nearly $134,000, an amount later reduced in court.

Read another profile of Ross from our go-to coal industry expert, reporter Ken Ward Jr., who speculated about a potential Ross appointment on his Coal Tattoo blog earlier in the month. Ward notes:

“It is worth pointing out that if he got either the Commerce or Treasury slot, Ross would not be in charge of coal mine safety and health regulation for the Trump administration. Folks who are concerned about those issues would obviously be better off watching to see who President-elect Trump makes secretary of Labor — and then who exactly is chosen to by assistant secretary of Labor for mine safety and health.”

Julie Ferguson is a marketing consultant for Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with permission from the firm's Workers' Comp Insider blog.

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