The Occupational Safety and Health Administration (OSHA) is still without an agency head six months into the presidency of Donald Trump. As such, the future of OSHA is unclear in light of the president’s promises of less government intervention and less regulation. Should these promises be implemented in the realm of occupational safety and health, employers may experience less government oversight in the workplace.

Of particular uncertainty is the fate of the newly promulgated electronic recordkeeping and reporting rule.^[] The electronic recordkeeping rule was expected to roll out on July 1, 2017, but was delayed “to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation…”^[] Affected employers now have until December 1, 2017 to comply with the new requirements. The delay in implementing the electronic recordkeeping rule may be the new administration’s initial efforts to deregulate occupational safety and health.

The new rule will require certain employers to electronically record and report data about workplace injuries and illnesses. In turn, OSHA will post this information on its website to make it available to the public. Currently, OSHA’s ability to obtain data about workplace injuries and illnesses is limited to three sources: (1) workplace inspections, (2) employer surveys, and (3) mandated reporting of workplace fatalities, hospitalizations, amputations, and losses of an eye. But, these three sources of data do not remotely encompass a complete sample of all employers subject to OSHA jurisdiction. For instance, in 2014 OSHA conducted 83,000 inspections, which only constituted 1 percent of all establishments under OSHA authority.^[] With respect to employer surveys, the collected data is often two to three years old and only represents a small fraction of employers.^[]

The new electronic recordkeeping and reporting rule does not change an employer’s already existing obligation to complete and retain injury and illness records. But, the new rule will facilitate the contemporaneous transmission of data to the agency. The hope is that OSHA will develop a more comprehensive and accurate picture of the most common workplace hazards and determine methods of prevention. The new rule also mandates a handful of employee-friendly provisions such as the requirement that employers inform workers of the right to report injuries and illnesses, and the prohibition on retaliating against employees for submitting a complaint to OSHA.

The new electronic recordkeeping rule has been met with both praise and criticism. The general purpose of the regulation is to prevent injuries and illness through the timely collection and analysis of workplace hazard data. A more comprehensive compilation of data may allow employers, employees, and the government to identify and alleviate the most probable workplace hazards. Furthermore, industry employees can be more conscious of the risks involved in his or her particular line of work. From the prospective of an employer, however, the regulation may increase the number of OSHA investigations and citations, thus leading to more monetary penalties.

On August 1, 2016, OSHA penalties increased by 78 percent. The maximum penalty for non-serious and serious violations jumped from $7,000 to $12,471. The maximum penalty for willful and repeat violations increased from $70,000 to $124,709. The maximum penalties are now readjusted each year for inflation. The current maximum 2017 penalties are $12,675 and $126,749, respectively.

As a result of these new penalty rates, employers have experienced a 59 percent increase in the penalties imposed as a result of citations being issued. Also, there has been over a 10 percent increase in the number of citations being contested.

Some states have developed their own OSHA-approved state plans concerning job safety and health programs, as opposed to being directly under Federal OSHA jurisdiction (State Plans). Interestingly, State Plans have six months to adopt new maximum penalties that are at least as effective as Federal OSHA. However, in the case of these new maximum penalties, many State Plans like that in Arizona, California, Nevada, Oregon, and Utah have yet to adopt the new higher Federal OSHA penalties.

So what does the future of occupational safety and health law look like? Without an agency head, it seems safe to say that the future picture of OSHA is murky and opaque. With the new administration’s diverse array of supporters, including both businesses and blue-collar workers alike, it remains to be seen how the administration’s OSHA rule making will be received.

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