2019 OSHA Outlook

1. OSHA Leader?

The start of 2019 for OSHA looks like it could start without a confirmed leader. Currently Loren Sweatt, who is the Deputy Assistant Secretary, is the acting Assistant Secretary of Labor. The top position opened up after Dr. David Michaels stepped down in January 2017. President Trump nominated Scott Mugno in October of 2017, but Mungo has not yet been confirmed.

According to some accounts, Mungo’s confirmation may be held up as part of a deal between Republicans and Democrats regarding other position confirmations. Also, there is speculation that since the Democrats now have gained control of the House, we will not see a confirmation hearing for this position during the rest of President Trump’s first term. If confirmed, Mungo would be the 13^th person to be nominated and confirmed.

Below is a little history regarding the Assistant Secretary of Labor position in the form of a timeline:

• George Guenther - April 1971 - January 1973
• M. Chain Robbins (Acting) - January 1973 - April 1973
• John Stender - April 1973 - July 1975
• Bert Concklin & Marshall Miller (Acting) - July 1975 - December 1975
• Morton Corn - December 1975 - January 1977
• Bert Concklin (Acting) - January 1977 - April 1977
• Eula Bingham - April 1977 - January 1981
• David Zeigler (Acting) - January 1981 - March 1981
• Thorne G. Auchter - March 1981 - April 1984
• Patrick Tyson (Acting) - April 1984 - July 1984
• Robert A. Rowland (Recess appointment; never confirmed) - July 1984 - July 1985
• Patrick Tyson (Acting) - July 1985 - May 1986
• John A. Pendergrass - May 1986 - March 1989
• Alan C. McMillan (Acting) - April 1989 - October 1989
• Gerard F. Scannell - October 1989 - January 1992
• Dorothy L. Strunk (Acting) - January 1992 - January 1993
• David Zeigler (Acting) - January 1993 - November 1993
• Joseph A. Dear - November 1993 - January 1997
• Gregory R. Watchman (Acting) - January 1997 - November 1997
• Charles N. Jeffress - November 1997 - January 2001
• R. Davis Layne (Acting) - January 2001 - August 2001
• John L. Henshaw - August 2001 - December 2004
• Jonathan L. Snare (Acting) - January 2005 - April 2006
• Edwin G. Foulke, Jr. - April 2006 - November 2008
• Thomas M. Stohler (Acting) - November 2008 – January 2009
• Donald Shalhoub (Acting) - January 2009 - April 2009
• Jordan Barab (Acting) - April 2009 - December 2009
• Dr. David Michaels - December 2009 - January 2017
• Jordan Barab (Acting) - January 2017 - July 2017
• Loren Sweatt (Acting) - July 2017 – Present
• Scott Mungo (nominated; not confirmed yet) - October 2017

2. 2019 Budget?

The FY 2019 Congressional Budget Justification for the Occupational Safety and Health Administration document that was submitted included the following budget activity increases:

• The Federal Enforcement budget activity request for FY 2019 is $212,735,000 and 1,393 FTE (Full-Time Employee), which includes an increase of $6,148,000 and 42 FTE above the FY 2018 Full Year CR level.
• The Federal Compliance Assistance budget activity request for FY 2019 is $75,619,000 and 272 FTE, which includes an increase of $5,120,000 and 32 FTE above the FY 2018 Full Year CR level.

OSHA’s new budget was just recently passed and signed into law. “Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019” (H. R. 6157) provides OSHA with a $557,787,000 budget for FY 2019. This is about a five million dollar increase from FY 2018.

The act also specifies the following:

• $102,350,000 shall be the maximum amount available for grants to States under section 23(g) of the Occupational Safety and Health Act.
• $10,537,000 shall be available for Susan Harwood training grants, of which the Secretary shall reserve not less than $4,500,000 for Susan Harwood Training Capacity Building Developmental grants.
• Not less than $3,500,000 shall be for Voluntary Protection Programs.

3. 2019 Focus?

In examining OSHA’s potential focus in 2019 we will look at three areas: standards currently in the process, possibility of deregulation and the likelihood of increased enforcement.

Standards?

Below is the current status of OSHA standards in the rulemaking process according to their website as of 11/12/2018. You can select the links in the RIN (Regulation Identifier Number) column for more specific details.

Agency	Agenda Stage of Rulemaking	Title	RIN
DOL/OSHA	Prerule Stage	Communication Tower Safety	1218-AC90
DOL/OSHA	Prerule Stage	Emergency Response and Preparedness	1218-AC91
DOL/OSHA	Prerule Stage	Mechanical Power Presses Update	1218-AC98
DOL/OSHA	Prerule Stage	Powered Industrial Trucks	1218-AC99
DOL/OSHA	Prerule Stage	Lock-Out/Tag-Out Update	1218-AD00
DOL/OSHA	Prerule Stage	Tree Care Standard	1218-AD04
DOL/OSHA	Prerule Stage	Prevention of Workplace Violence in Health Care and Social Assistance	1218-AD08
DOL/OSHA	Prerule Stage	Blood Lead Level for Medical Removal	1218-AD10
DOL/OSHA	Prerule Stage	Occupational Exposure to Crystalline Silica; Revisions to Table 1 in the Standard for Construction	1218-AD18
DOL/OSHA	Proposed Rule Stage	Amendments to the Cranes and Derricks in Construction Standard	1218-AC81
DOL/OSHA	Proposed Rule Stage	Update to the Hazard Communication Standard	1218-AC93
DOL/OSHA	Proposed Rule Stage	Cranes and Derricks in Construction: Exemption Expansions for Railroad Roadway Work	1218-AD07
DOL/OSHA	Proposed Rule Stage	Puerto Rico State Plan	1218-AD13
DOL/OSHA	Proposed Rule Stage	Exposure to Beryllium NPRM to Review General Industry Provisions	1218-AD20
DOL/OSHA	Final Rule Stage	Standards Improvement Project IV	1218-AC67
DOL/OSHA	Final Rule Stage	Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection	1218-AC94
DOL/OSHA	Final Rule Stage	Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records	1218-AC95
DOL/OSHA	Final Rule Stage	Crane Operator Qualification in Construction	1218-AC96
DOL/OSHA	Final Rule Stage	Technical Corrections to 35 OSHA Standards and Regulations	1218-AD12
DOL/OSHA	Final Rule Stage	Tracking of Workplace Injuries and Illnesses	1218-AD17
DOL/OSHA	Final Rule Stage	Occupational Exposure to Beryllium and Beryllium Compounds in Construction and Shipyard Sectors	1218-AD21
DOL/OSHA	Long-Term Actions	Occupational Injury and Illness Recording and Reporting Requirements--Musculoskeletal Disorders (MSD) Column	1218-AC45
DOL/OSHA	Long-Term Actions	Infectious Diseases	1218-AC46
DOL/OSHA	Long-Term Actions	Process Safety Management and Prevention of Major Chemical Accidents	1218-AC82
DOL/OSHA	Long-Term Actions	Shipyard Fall Protection--Scaffolds, Ladders and Other Working Surfaces	1218-AC85

I find the following standards from the table above to be noteworthy:

• Update to the Hazard Communication Standard - OSHA's rulemaking was based on the third edition of the GHS and the UN recently completed the seventh. OSHA is conducting rulemaking to harmonize the HCS to the latest edition of the GHS and to codify a number of enforcement policies that have been issued since the 2012 standard.

• Exposure to Beryllium NPRM to Review General Industry Provisions - In response to the stakeholder feedback, and to resolve pending litigation, OSHA is planning to propose revisions to certain provisions in the general industry standard. The revisions OSHA plans to propose are generally designed to clarify the standard in response to stakeholder questions or to simplify compliance, while in all cases maintaining a high degree of protection from the adverse health effects of beryllium exposure.

• Occupational Exposure to Crystalline Silica; Revisions to Table 1 in the Standard for Construction - OSHA is interested in information on the effectiveness of control measures not currently included for tasks and tools listed in Table 1. The Agency is also interested in tasks and tools involving exposure to respirable crystalline silica that are not currently listed in Table 1, along with information on the effectiveness of dust control methods in limiting worker exposure to respirable crystalline silica when performing those operations. OSHA intends to evaluate the available information to determine if revisions to Table 1 may be appropriate.

• Tracking of Workplace Injuries and Illnesses - OSHA published a proposed rule on July 30, 2018, to remove provisions to the Improve Tracking of Workplace Injuries and Illnesses final rule, 81 FR 29624 (May 12, 2016). OSHA proposed to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). OSHA also proposed to add the Employer Identification Number (EIN) to the data collection to increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match OSHA-collected data to BLS Survey of Occupational Injury and Illness (SOII) data and potentially reduce the burden on employers who are required to report injury and illness data both to OSHA (for the electronic recordkeeping requirement) and to BLS (for SOII). OSHA is reviewing comments and will publish a final rule in June 2019.

Deregulation?

At the beginning of the Trump administration, many experts were predicting substantial changes for OSHA. These included budget cuts, leaner regulations and a focus change from enforcement to compliance assistance. There was also that infamous statement that all new regulations would require two existing ones to be cut.

So, at first it looked like we might see huge changes towards deregulation. However, in reality that has not quite been the case. OSHA has not been churning out new or revised regulations at a fervent pace but there have been a few. Additionally, OSHA’s budget for 2019 is increasing as will the number of the agency’s full-time employees.

Increased Enforcement?

According to the FY 2019 Congressional Budget Justification for the Occupational Safety and Health Administration, along with the 2019 budget increase, increased enforcement seems to be more likely than a decrease. It also seems, although there have been no officially released statements, that the new injury and illness reporting information will be used by OSHA and state plans to help in the selection process for the increased enforcement.

Below are two statements directly from the FY 2019 Congressional Budget Justification for the Occupational Safety and Health Administration:

• “OSHA’s enforcement strategies include targeting inspections at workplaces with particular hazards or at specific hazardous industries. In a number of cases, these targeted approaches identify egregious and persistent violators of the OSH Act. By reaching the most hazardous worksites, the agency not only helps ensure safe and healthy workplaces and reduce workplace injuries, illnesses, and deaths, but also protects at-risk workers, who are less likely to have the protections and training to safely work in high hazard workplaces.”

• “In FY 2019, OSHA requests $212,735,000 and 1,393 FTE for the Enforcement activity, an increase of $6,148,000 and 42 FTE from the FY 2018 Full Year Continuing Resolution level. The requested increase will support additional compliance safety and health officers (CSHOs) to provide a greater enforcement presence and provide enhanced technical assistance to employers who need help in understanding how to achieve compliance with OSHA standards. The increase will also allow the agency to continue its strong commitment to the enforcement of occupational safety and health standards and regulations as an effective deterrent to those employers who put their workers’ lives at risk. OSHA plans to conduct 30,840 inspections and reach a goal of 46,573 enforcement units (EUs), shifting its focus to the highest-impact and most complex inspections at the highest-risk workplaces.”

4. Penalties

Due to the good possibility of increased enforcement activities from OSHA in 2019, I thought it might be a good idea to remind everyone what the possible penalties are.

Criminal/Willful Violations: “Any employer who willfully violates any standard, rule or order promulgated pursuant to Section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both”.

Maximum Civil Penalties:

Type of Violation	Penalty
Serious Other-Than-Serious Posting Requirements	$12,934 per violation
Failure to Abate	$12,934 per day beyond the abatement date
Willful or Repeated	$129,336 per violation

Making a false statement to a CSHO during the course of an investigation could be a criminal offense. Making a false statement, upon conviction, is punishable by a fine of up to $10,000 or six months in jail, or both.

Summary

In an attempt to summarize all the information presented above, let me leave you with another paragraph from the FY 2019 Congressional Budget Justification for the Occupational Safety and Health Administration:

“OSHA will use four broad categories to guide its activities. Through compliance assistance, training and outreach; enforcement; and standards and guidance development, the agency promotes and improves overall compliance with workplace safety and health standards. Through whistleblower protection, OSHA also protects employees from retaliation and discrimination.”

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