NEWS ANALYSIS
On July 1—just three days before Independence Day—the Occupational Safety and Health Administration (OSHA) took the unprecedented step of initiating 26 rulemaking proceedings on the same day, ranging from technical adjustments for chemical exposure equipment rules to one major policy shift, all intended to advance the Trump Administration’s deregulation agenda.
“One of President Trump’s very first actions was directing his cabinet to dismantle the mountain of outdated rules that have held back American workers and businesses for far too long,” commented Labor Secretary Lori Chavez-DeRemer, adding that DOL “is proud to lead the way by eliminating unnecessary regulations that stifle growth and limit opportunity.”
OSHA’s proposed deregulatory actions represent “a significant shift in federal workplace safety policy, with implications for employers across a range of industries,” according to attorneys from the law firm of Reed Smith. “While the agency asserts that these changes will streamline compliance and better reflect current technology and practices, companies should closely monitor OSHA’s ongoing rulemaking process and be prepared to adapt their workplace safety programs accordingly.”
One example is the agency’s proposal to revise its Respiratory Protection Standard to remove the requirement for medical evaluations for those employees who are required to use either filtering facepiece respirators (FFRs) or loose-fitting powered air-purifying respirators (PAPRs). However, this change is expected to have no effect on the current medical evaluation requirements for other types of respirators, such as tight-fitting air-purifying or supplied-air respirators.
The current standard requires employers to provide a medical evaluation to determine an employee’s ability to use a respirator before fit testing or use in the workplace. This requirement was based on what at the time it was adopted was believed to be a potential for adverse health effects from respirator use, even for healthy employees.
If finally adopted after public comments are gathered by the agency, the new standard would apply to a range of chemicals, including lead, vinyl chloride, inorganic arsenic, methylene chloride, formaldehyde, acrylonitrile, 1,3-butadiene, ethylene oxide, cadmium, coke oven emissions, and 13 listed carcinogens.
The Reed Smith attorneys say the change is being proposed because OSHA says it has found that the evidence supporting the need for medical evaluations for FFRs and loose-fitting PAPRs does not support it, citing a lack of epidemiological evidence that medical evaluations prevent adverse health outcomes for users of FFRs and PAPRs.
The other proposals launched by OSHA on July 1 include one that would remove minimum illumination requirements for construction sites, which the agency says does not significantly reduce worker risk. OSHA also wants to eliminate certain safety color code requirements, asserting that the relevant hazards are adequately addressed by other kinds of federal, state and local regulations.
In addition, the COVID-19 Emergency Temporary Standard (ETS) and associated recordkeeping provisions would be formally removed from the Code of Federal Regulations. OSHA ceased enforcement of the ETS after it had been stayed by the U.S. Supreme Court, and the Biden Administration later abandoned plans to adopt a permanent COVID-19 rule.
OSHA is taking the position that the requirement to report COVID-19-related fatalities and hospitalizations has lost importance and no longer warrants a separate reporting system beyond those that are required for reporting other diseases.
The Reed Smith attorneys also took note that OSHA plans to withdraw a longstanding proposal to amend the OSHA 300 Log to include a column for work-related musculoskeletal disorders, citing resource constraints and competing regulatory priorities. This is being done in spite of recommendations from the Government Accountability Office for OSHA to improve injury data collection, the attorneys observe.
High-Risk Occupations
The list of proposed rulemakings also includes a change in how the agency intends to enforce the General Duty Clause. This avenue of enforcement was included by Congress in the federal legislation enacted in 1970 that created OSHA to serve as the worker safety enforcement arm of the U.S. Department of Labor (DOL).
This provision established that OSHA can take enforcement action against an employer beyond anything that has been included in specific written regulations after it finds that the employer has violated their affirmative obligation to provide a safe and healthy workplace for all of their workers.
On July 1, OSHA proposed a rule that will exclude from General Duty Clause enforcement inherently risky activities that are integral to certain professional and performance-based occupations. Also included under this umbrella are such activities as theatrical performances, animal handling and performance, professional and extreme sports, motorsports and high-risk recreation, tactical and combat simulation training, as well as hazard-based media and journalism activities.
If the proposed rule is ultimately adopted, employers in these fields would be expected to make reasonable efforts to control hazards through means that do not alter the nature of the activity (such as engineering controls, administrative controls and personal protective equipment).
“Historically, OSHA has cited a number of entertainment industry employers for violating the General Duty Clause as a result of incidents involving the performances,” explains John D. Surma, attorney with the law firm of Ogletree Deakins. “The proposed rule would exclude from OSHA enforcement those hazards that are inseparable from the core nature of such activities, provided that eliminating the hazard would fundamentally alter the activity itself.”
The agency has yet to fully explain why at this time OSHA has chosen to address safety enforcement regarding lion tamers and movie stuntmen, especially since the agency estimates that the total cost impact measures only $514,000. Others have their own theories.
“Proponents of the proposed rule believe that the scaled-back interpretation more accurately aligns with Congress’s textual extension of agency authority in the OSH Act, eliminates arbitrary distinctions between some inherently risky occupations and others, and perhaps most importantly, supports worker autonomy,” say attorneys Darren Crook and Brigette Dechant of the BakerHostetler law firm
However, the lawyers point out that opponents of the proposed rule have denounced the policy as demonstrating a disregard for worker safety by suggesting that employees in inherently dangerous jobs should willingly accept the risks involved.
While a final rule is not expected until 2026, it’s not hard to see what could easily come next, Crook and Dechant predict. “If inherently risky employment activities in the sports or entertainment industries can no longer be cited under the General Duty Clause, OSHA could similarly determine that inherently dangerous work in other highly hazardous industries is outside the scope of OSHA’s catch-all enforcement mechanism.”
