Labor Nominee Could Curtail OSHA Rules

Some legal experts say Andrew Puzder, President-elect Donald Trump’s nominee to lead the Department of Labor, could roll back unpopular regulations handed down recently by the department’s Occupational Safety and Health Administration (OSHA).

In May, OSHA implemented the “Improve Tracking of Workplace Injuries and Illnesses” rule. It requires employers in high-hazard industries, including manufacturing and construction, to send injury and illness data straight to OSHA every year. The agency will then post that information on its website. The new requirements take effect in August 2016, with phased-in data submissions beginning in 2017.

“There has been a lot of concern raised by employers about these changes,” Edwin Foulke, Jr., co-chair of the Fisher Phillips law firm’s Workplace Safety and Catastrophe Management Practice Group and a former head of OSHA, told JD Supra, a news organization focused on the regulatory landscape.

In March, OSHA created a stir when it issued the final version of its controversial silica rule, which aims to limit workers’ exposure to crystalline silica. The rule, which has been in the works since 2013, reduces the permissible exposure limit (PEL) for respirable crystalline silica to 50 micrograms per cubic meter of air, averaged over an eight-hour shift. It also requires employers to implement engineering controls, offer medical exams and develop a control plan.

The construction sector has been pushing back hard against the new regulation, and in April, eight industry organizations filed a petition for review of the rule with the U.S. Court of Appeals for the Fifth Circuit.

“Some employers believe that compliance is nearly impossible,” Foulke told JD Supra, adding that the standard is likely to be scrapped or radically revised under Puzder.

In general, Foulke also believes that OSHA will move away from the sole focus of enforcement to more of an “enforcement and compliance assistant” mode.

“I believe that Secretary of Labor Puzder will look at the use of the joint employer doctrine in the OSHA setting, scaling back some of the aggressive positions taken by the Obama administration,” Foulke told JD Supra.

Additionally, Puzder has expressed opposition to the Department of Labor’s overtime rule. The regulation was scheduled to go in effect on December 1, but a lawsuit has blocked its implementation.

The rule would have increased the salary level under which employees qualify for overtime pay from $455 per week ($23,360 annually) to an estimated $913 per week ($47,476 annually). In addition, the rule would have provided for automatic updates to the threshold every three years.

“The real world is far different than the Labor Department’s Excel spreadsheet,” Puzder wrote in Forbes in May. “This new rule will simply add to the extensive regulatory maze the Obama Administration has imposed on employers, forcing many to offset increased labor expense by cutting costs elsewhere. In practice, this means reduced opportunities, bonuses, benefits, perks and promotions.”

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