Safety Tips: What to expect with OSHA and MSHA post-election

Following one of the most interesting campaign seasons in recent memory, as a result of the candidate field and COVID-19 pandemic, the 2020 election results appear to be coming into focus – legal challenges and recounts withstanding. It is now time we start looking ahead to how the country, economy and government regulators may look under a new presidential administration. 

It is well established that the Occupational Safety & Health Administration (OSHA), as well as the Mine Safety & Health Administration (MSHA), are both politically-driven organizations. While many of the permanent employees at the agencies remain constant no matter the administration, the leadership of both is politically and presidentially nominated. That applies to the secretary of labor, assistant secretaries for OSHA and MSHA, and many other high-ranking officials.

As a result, the priorities of the agencies tend to shift after administration changes, and those priorities eventually trickle down to the inspectors, investigators and compliance officers visiting the nation’s workplaces.

An old adage states that OSHA and MSHA engage in compliance assistance during Republican administrations and enforcement during Democratic administrations. While that isn’t entirely accurate, as enforcement actions occur no matter who is in the White House, there is some truth to the statement. This is usually demonstrated by the degree with which the agencies seek to work cooperatively with employers or utilize enforcement more aggressively.

So, what might a Department of Labor (DOL) look like under a Biden administration, and how may that impact America’s mines, construction sites, factories and workplaces? 

Administration expectations

While we do not know for certain who will lead the DOL in a Biden administration – and we will not know until the president-elect puts forth a nominee who is then confirmed by the Senate – the likely candidate will have strong ties to labor and workforce. One name that has recently been tied to rumors for secretary of labor is Sen. Bernie Sanders (I-Vermont), who would likely pursue a staunchly pro-worker agenda.  

The same can, and should, be expected when selecting assistant secretaries to lead OSHA and MSHA. Republican administrations tend to pull from candidate pools with ties to the management side, as they did with MSHA assistant secretary David Zatezalo, a former coal executive.

Not unexpectedly, Democratic administrations usually nominate candidates with strong labor ties, such as Joe Main, the assistant secretary of MSHA during the Obama administration, who spent much of his career prior to MSHA with the United Miner Workers of America. 

From an enforcement perspective, historically, we tend to look back to the most recent Democratic or Republican administration of the president-elect to map what the enforcement agencies may prioritize in the coming years. In this instance, we do not have to try too hard to imagine how OSHA and MSHA may look given that President-elect Biden served as vice president during the entirety of the Obama administration. The administrations will likely share many policy similarities. 

During that time, OSHA and MSHA aggressively pursued and prosecuted worker whistleblower protection/workplace discrimination matters against employers, sought to promulgate new and more burdensome safety and health regulations, demanded increasingly broad workplace injury and illness reporting, and applied more stringent interpretations of existing rules. 

Pandemic response

Additionally, it cannot be forgotten that the country and world are still mired in a pandemic that will not disappear in the near future, even with promising vaccine developments. Since the pandemic began, neither OSHA nor MSHA have promulgated an Emergency Temporary Standard regarding COVID-19, despite litigation against both agencies from labor groups seeking to compel OSHA and MSHA to do so. 

OSHA has, and continues, to conduct COVID-19-specific investigations, and we are slowly starting to see more resulting enforcement as many of OSHA’s six-month statute of limitations for issuing enforcement after initiating investigations begin to toll. Despite these efforts by OSHA, calls for a more aggressive approach by the federal workplace safety regulator are growing and will be heard by more receptive ears come January. Conversely, MSHA has largely stayed out of the COVID-19 enforcement realm, but that too will likely change under Biden.

Several states around the country – including Virginia, Oregon and Michigan – have already issued temporary standards for regulating COVID-19 in the workplace, and more will follow. These rules, already in place, give a framework that OSHA can easily adopt and implement under a new administration. 

Additionally, employers may see or hear of some of the following changes:

Legislation and rulemaking 

■ OSHA: Protecting America’s Workers Act, which would update and strengthen the OSH Act 

■ MSHA: Byrd Mine Safety Protection, which would update and strengthen the Mine Act 

■ MSHA: A new Silica Rule. This is promulgation of a much more stringent rule on respirable quartz (silica). The Trump administration is currently working on a draft rule, but it remains unpublished, and a new silica regulation for mining was targeted by the Obama administration after pushing through OSHA’s updated silica rule.

■ OSHA/MSHA: Reductions of Permissible Exposure Limits

Enforcement priorities and tactics

■ OSHA: Renewed focus on enforcement by shaming, through the use of press releases after citations issued to employer and before contest and/or litigation are complete 

■ MSHA: Renewed enforcement focus on impact inspections, Rules to Live By, and/or issuance of flagrant violations

■ OSHA/MSHA: Increased enforcement and increased pursuit of civil and/or criminal charges against management employees.

Looking ahead

In the aftermath of the 2020 election, it is easy to imagine an entirely different workplace safety regulatory environment. It is important to be prepared for what may come to pass, but also to remember that these changes will not be overnight. Any significant alterations to the existing laws – namely the updated statutes mentioned for both OSHA and MSHA – would need congressional support and approval. 

With that said, the prudent employer should be reevaluating their safety and health programs to ensure the programs are compliant with all applicable regulations, and ensuring the company has COVID-19 exposure and response programs in place. While we cannot be positive where the next enforcement focus will be under the Biden administration, history would predict the incoming administration will enforce more aggressively and engage in more stringent and burdensome rulemaking for companies regulated by OSHA and MSHA.

Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.