With the 2024 election cycle complete, we can see how the regulatory landscape will change over the next four years.
While it is unlikely the Occupational Safety & Health Administration (OSHA) nor the Mine Safety & Health Administration (MSHA) will disband under the Donald Trump administration, employers are likely to see shifting priorities in enforcement and rulemaking efforts from the Department of Labor’s safety and health agencies.
OSHA
OSHA operated without a confirmed assistant secretary throughout the entirety of Trump’s first term. Currently, the administration is moving more quickly concerning appointments, so we do not expect OSHA to go leaderless again.
While it is not yet clear how quickly the second Trump administration will turn its sights to OSHA, we’re unlikely to see a push to increase OSHA’s budget or even to backfill enforcement personnel who leave the agency.
OSHA under Trump 2.0 is likely to adopt more employer-friendly policies than President Biden’s current administration. These policies could include:
• Prioritizing compliance assistance efforts.
• Scaling back or stopping the use of press releases and safety and health data to shame employers publicly. Or, even if OSHA continues to issue press releases, expect far fewer of them with a decidedly different tone.
• Rolling back enforcement policies and practices adopted by the Biden administration, such as OSHA’s expanded application of its instance-by-instance citation policy; lowered thresholds for inclusion in the Severe Violator Enforcement Program; and more aggressive use of, for example, egregious, willful and repeat citations.
• Reducing the number of emphasis programs by declining to renew, or even withdrawing, certain NEPs (national emphasis programs), REPs (regional emphasis programs) and LEPs (local emphasis programs).
The Congressional Review Act and recent Supreme Court decisions, including Loper Bright, Jarkesy and Corner Post, will bolster efforts to rein in agency action, and the Trump administration will push for continued deregulation.
Many expect President Trump to drop the government’s defense of OSHA’s “Worker Walkaround Representative Designation Process” rule. Additionally, the comment period for OSHA’s proposed “Heat Injury & Illness Prevention in Outdoor & Indoor Work Settings” rule remains open until Dec. 30, but how a new OSHA team considers comments and whether it decides to pursue further action after Jan. 20, is unknown.
MSHA
Unlike OSHA, Congress mandates in the Mine Act that MSHA must conduct inspections – two per year at surface operations and four per year at underground operations. However, that does not mean the agency’s enforcement will remain the same.
Like with OSHA, it is likely that MSHA will become more employer-friendly and could:
• Rollback programs such as monthly impact inspections; shorten pattern of violation examination intervals; and reduce emphasis programs.
• Emphasize and provide more significant resources to compliance assistance programs, such as education and field services personnel.
• Reduce the use of the special assessment process to increase penalties for citations related to accidents or injuries.
Current rules
The current administration has been one of the most impactful in recent history for MSHA with respect to rulemaking. The Biden administration pushed through the surface mobile equipment safety program rule (which became effective in July 2024) and MSHA’s new respirable crystalline silica rule for all mines and independent contractors working in the mining industry.
Because the surface mobile equipment rule is currently final and effective, expect that rule to remain as is. Still, MSHA’s focus on the program may dwindle under the new administration. The silica rule is also final and beyond the time frame for the Congressional Review Act. Therefore, MSHA cannot rescind or withdraw that rule.
Final thoughts
We expect OSHA and MSHA to initially adapt as we have become accustomed to in the transition from Democrat to Republican administrations. While enforcement is an essential element of the regulatory scheme, expect the agencies to have a gentler hand in that space, invest more resources in compliance assistance and continue to explore opportunities to reduce the regulatory burden on employers.
Previous column: What OSHA’s proposed heat illness prevention rule could mean for employers
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.
Featured Photo: Maksim Safaniuk / iStock / Getty Images Plus / Getty Images