OSHA Plan Saps Enforcement Power for Dangerous Jobs, States Warn

States are pushing the Trump administration to change course on narrowing use of a catch-all federal workplace-safety oversight tool, warning it will weaken enforcement of protections more than the government is letting on.

The Occupational Safety and Health Administration plans to exclude hazards that are “inherent and inseparable from the core nature” of a job from coverage under its general duty clause , effectively limiting use of the agency’s broad enforcement tool to hold employers liable for workplace injuries and deaths.

The change would limit when the federal government and most states can cite employers for hazards associated with a job’s function.

In an industry where risky activities are an integral part of the job, some state regulators would be blocked from intervening when an employer acted cavalierly about protecting workers under the current proposal, according to former state workplace safety officials.

“This change could back them into a corner,” said FDR Safety LLC’s CEO Steve Hawkins, who formerly managed Tennessee OSHA.

OSHA extended the July comment period deadline for the proposed rule until Nov. 1 after receiving multiple requests from key stakeholders, including the Associated General Contractors of America and the AFL-CIO. The agency is expected to finalize the regulation after the comment period.

OSHA argues its proposal to limit use of the general duty clause would just exempt jobs in the arts and entertainment sector including athletes and actors, affecting about 500 US employers.

Workplace safety researchers and state officials, however, warn the change may have unintendedsweeping effects to the agency’s enforcement and that OSHA could apply the change more widely than the agency is currently advertising.

“While OSHA today is proposing to apply the rule narrowly, it seems likely that if the rule is adopted, OSHA will finds ways to apply it to a much greater number of dangerous industries,” said Susan Bisom-Rapp, a professor at California Western School of Law.

OSHA didn’t respond to a request for comment.

State Plan Problems

State workplace safety regulations are required by the Occupational Safety and Health Act to be “at least as effective” as those at the federal level and some have directly tied their enforcement to the agency’s rulemaking.

California’s Injury and Illness Prevention Program acts as its version of the general duty clause, while states like North Carolina and Tennessee mimic the federal version of the general duty clause.

The proposed shift on use of the general duty clause will “have terrible adverse impacts in the states which have federal OSHA oversight,” said Garrett Brown, who worked at Cal/OSHA for two decades—first as an industrial hygienist and later as special assistant to the agency’s chief.

Leann M. Walsh, a partner at K&L Gates in North Carolina, said that state’s employers would welcome the policy change because it would give them more certainty in their compliance efforts.

“Sometimes accidents do just happen and are not always preventable, and then they’ll get cited anyway. So I think with this proposed approach, the general duty clause wouldn’t be used in those specific sectors,” said Walsh.

However, the Occupational Safety and Health State Plan Association—an organization that represents the 29 states and US territories with plans that have federal OSHA approval—as well as Kentucky OSHA and Puerto Rico OSHA have raised concerns in their comments that this rulemaking opens the door for the federal agency to compel state plans to adopt rules that are less protective.

OSHA’s proposal said the change would “not result in any diminution of the effectiveness” of state plans, therefore states wouldn’t have to change their own programs.

But Barton Pickelman, chair of OSHSPA, said in his comment that the agency also sought comment on that point, indicating it could change.

“If OSHA is not contemplating compelling State Plans to adopt rules that are less stringent or less protective, then why seek comments on that part of the rulemaking as it is misleading,” Pickelman wrote.

Eric Vega Guzmán of Puerto Rico OSHA wrote that employers in high-risk industries like emergency response and construction—where there are inherent risks associated with those jobs, such as heat and violence—could lead to inconsistent enforcement and unsafe practices across those sectors.

In Kentucky, specifically, this would create a unique dilemma as the legislature in March limited the state plan’s ability to enforce standards beyond what is established at the federal level.

OSHA’s proposal would create a legislative conundrum under existing state law and result in Kentucky’s horse-racing and bourbon industries becoming partially unregulated, according to Kimberlee C. Perry, commissioner of the state’s Department of Workplace Standards.

“These industries sometimes necessitate the need to issue general duty citations due to the unique hazards associated with them,” Perry added.

‘Red Herring’ vs. Reevaluation

The proposal’s language would allow the agency to exempt health care, construction, and other fields for hazards associated with their industries, legal observers say.

Its approval would create an avenue for employers to circumvent implementing safety measures for recognized hazards in those industries, according to Jordan Barab, who served as deputy assistant secretary for OSHA during the Obama administration.

“The idea that OSHA is going to get involved in tackling in football is just a red herring” that industry is using “as an excuse to weaken the general duty clause,” said Barab.

Management-side attorneys argue the change would bring balance to cases involving factors outside of an employer’s control.

The general duty clause at times places unreasonable burdens on employers for addressing hazards inherent to a job’s function, according to Alka Ramchandani-Raj, co-chair of Littler Mendelson PC’s Occupational Safety and Health practice group.

OSHA is heading in the right direction by attempting to establish boundaries for the clause, she said.

“This is kind of the starting point of them putting some brakes on it,” said Ramchandani-Raj.