Senate Majority Leader Mitch McConnell at a news conference after the Senate Policy luncheons in the Capitol, March 14, 2017.
As Republicans accelerate their deregulatory crusade in Congress, they are putting workplace safety standards squarely in their crosshairs. At the top of the list, the GOP wants to do away with an Obama administration regulation that maintained the power of an OSHA workplace injury recordkeeping rule. House Republicans voted to eliminate the rule in early March, and the Senate will vote on it Tuesday.
The rule mandates that employers are responsible for tracking and recording all their workplace injuries and illnesses and allows OSHA to fine companies that fail to keep accurate and complete records going back five and a half years. Obama’s former top OSHA official warns that repealing the rule would undercut the agency’s ability to levy fines against high-violation companies that consistently fail to keep records of workplace injuries, making it harder for responsible employers to compete and putting workers in harm’s way.
“If you don’t record injuries, you can’t investigate them, and you can’t prevent the next one,” says David Michaels, who headed up OSHA for Obama’s entire presidency. “If this rule is overturned, there will be no sanctions against employers who don’t track their injuries even if there is a legal requirement [to do so]. Employers who lie will be advantaged.”
In 2012, the D.C. circuit court ruled that OSHA could not enforce recordkeeping violations that go back further than six months, overturning OSHA’s 40-year practice of sanctioning record-keeping violations stretching back five and a half years. The effect of the six-month requirement, given OSHA’s limited resources, would essentially make recordkeeping voluntary.
“Any sort of complex investigation takes many months—often six months,” Michaels explains. “Unless an injury occurred immediately before an inspection began, it’s extremely unlikely for OSHA to identify the [unreported] injury” in the six-month time frame.
After the court ruling, recordkeeping citations fell 75 percent, Michaels says, and major investigations that turned up long-term patterns of unrecorded violations virtually disappeared. In 2011 alone, there were 81 OSHA inspections that led to recordkeeping fines of $5,000 or more, including six with fines of more than $40,000. Between 2013 and 2016, after the court’s ruling, there were only 31 inspections that led to $5,000 fines or higher. Even after Congress granted OSHA the ability to charge higher fines for violations and the agency prioritized recordkeeping violations, there was still a significant drop off.
For example, during an investigation of Wayne Farms, a large poultry producer and processor (which is one of the most injury-prone industries for workers), OSHA discovered a long history of recordkeeping violations. But because of the limited citation window, it was only able to cite the handful of violations that it witnessed in real-time during the investigation. “There were cases so egregious and weren’t recorded properly. We had to ignore scores of violations,” Michaels says.
In a legal workaround, the Obama administration rewrote the recordkeeping regulation to restore the five-year window in December 2016. In introducing the repeal measure, Republican Congressman Richard Byrne, who chairs the Subcommittee on Workforce Protections, called it an “unlawful power grab” that would cripple small businesses.
“With this rule, OSHA rewrote federal law while doing nothing to improve worker health and safety,” Byrne said in a statement. “Congress must reject this unlawful power grab and encourage the agency to adopt the responsible, proactive safety approach that America’s workers deserve.”
Tuesday’s Senate vote on the rule comes amid an onslaught of repeal efforts aimed at Obama’s fourth-quarter regulations—many of which address environmental and labor safety standards. In addition, the Trump administration is going after workplace standards as well. In its budget proposal released last week, the White House called for slashing the Labor Department’s budget by 21 percent, which comes to $2.5 billion in cuts. While it is unclear where all of those cuts would happen, it would almost certainly weaken the department’s ability to enforce labor laws. The budget proposes eliminating OSHA’s Harwood Grants, which provide funding to nonprofits to train workers in hazardous industries.
As The New York Times reports, The White House has also announced that it has delayed implementing OSHA’s new beryllium rule, which would lower exposure limits to the dangerous carcinogen and was slated to go into effect in March, until at least May. It also appears to have put on pause another new OSHA rule that requires companies to electronically file injury data that the agency would then post on a new public website. Additionally, the agency appears to no longer be releasing public announcements of enforcement actions against employers, which has been seen as an effective public-shaming tool.
The Republican-controlled Senate is expected to approve the repeal on Tuesday, after which it will head to the White House, which has voiced clear support for repeal as well. Since the rule, instituted by Obama in December, falls within the purview of the Congressional Review Act, Senate Democrats cannot filibuster.
“If the Senate repeals this OSHA rule, and Mr. Trump decides, as he has indicated he will, to sign the resolution, this serves as yet another sign that the GOP’s allegiance is to corporate lobbyists and enriching big business, first and foremost—and not to this nation’s workers that they pledged to help,” says Debbie Berkowitz, a former OSHA policy advisor who is now with the National Employment Law Project.
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