States to Take Reins in Workplace Safety Enforcement Under Trump

State work safety agencies are poised to double down on enforcement in response to an expected retreat under the new Trump administration from more robust Biden-era OSHA activity, attorneys say.

Several states are expected to ramp up their enforcement of worker safety rules to ensure companies comply with local rules that haven’t been promulgated at the federal level—namely the proposed national heat standard. Employers in these states will be subject to stricter requirements than what’s seen at the federal level.

“It’s really going to be kind of a changing of the guard in terms of who’s pushing forward the safety and health agenda,” Nicholas Scala, chair of Conn Maciel Carey LLP’s MSHA practice group in Columbus, Ohio, said.

The Trump administration is expected to curtail work safety efforts with a slowdown in new rules, as well as a reduction in worksite inspections.

Notably, California’s Division of Occupational Safety and Health—one of the more active state worker safety agencies—is poised to lead in agenda-setting efforts for worker protections.

Blue states like Oregon and Washington are expected to follow California’s example. While red and purple states with OSH plans like Kentucky, Tennessee, and Michigan are likely to maintain their more moderate approach, Scala noted.

Twenty-seven states, plus Puerto Rico and the US Virgin Islands, have federal approval to operate a job safety agency.

For example, the Cal/OSHA Standards Board is hearing presentations in January addressing occupational disparities experienced in prison systems. As it stands, the state prison system is exempt from the regulation for indoor heat, but advocates are looking to reverse that exemption.

With the US Occupational Safety and Health Administration setting the minimum requirements for itself and states, oftentimes there’s tension and even variation among them. Variations can lead to questions of preemption as localities and states look to adopt a different approach to worker safety laws than what is expected at the federal level with the incoming administration.

Many state agencies will first eye what the Trump administration does at the federal level to spot these gaps then move to fill them, attorneys say.

“Everybody is in a wait-and-see mode right now: they’re waiting to see how this goes down, how it looks,” said Roger Finderson, president of the Workers’ Injury Law and Advocacy Group.

Leading the Way

New York signed a new law that requires more efforts to prevent musculoskeletal injuries among warehouse workers. The new law requires employers to conduct annual worksite evaluations using a qualified safety consultant, and employee trainings—among other steps.

President George W. Bush signed a bill to repeal the federal ergonomics standard. OSHA has since then attempted to address ergonomics by issuing guidelines for various industries. But despite not having a specific industry standard, OSHA can still issue a citation under the general duty clause.

New York and California have also adopted workplace violence prevention laws in response to growing concerns about violence, particularly mass shootings.

Although OSHA has cited employers, particularly in health care for failing in their “general duty” to protect workers attacked by coworkers or patients, federal law and most states don’t lay out specific obligations for employers related to risk of violence, leaving an opening states are beginning to fill.

Variations Among States

Worker advocates like Stephen Knight, the executive director of Worksafe Inc. in California, expects his state agency to do everything it can to keep California workers safe.

“We saw some real innovation in the county of Los Angeles, for example, during Covid, and I do expect worker advocacy to be a significant front-line area of activity in the next four years,” Knight said. “I expect workers facing the kind of things that workers face all the time in this very worker-unfriendly culture that we have in our country to be motivated to stand up and advocate for their rights.”

Last year, Florida joined Texas in blocking heat safety mandates aimed at protecting outdoor workers. Republican-majority legislatures sought to preempt local ordinances as a means to promote a consistent, statewide policy. But worker advocates are still fighting for a national heat standard to protect workers across the country.

We need legislation that would cover workers in extreme heat, said Freddy Pierre, a staff organizer with Beyond the Bars—a worker center in South Florida focused on advocating for formerly incarcerated people.

“I’ll be able to get something to drink, I’ll be able to have shade over my head, and be able to live and work even better,” he said.

State-Approved Plans v. OSHA

Federal law says OSHA can launch a takeover of a state worker safety program if it isn’t “at least as effective as” the federal agency. South Carolina and Arizona most recently have been the two states embroiled in fights with federal OSHA over their power to enforce worker safety protections.

While Arizona officials approved measures sought by OSHA before the revocation reached a judge, South Carolina is still challenging the federal agency’s authority to set fine maximums and minimums for state inspectors.

But even with whispers of some states looking to adopt or further expand their worker safety programs in coming years, the costs could deter the move. In the past decade, Florida and Kansas lawmakers considered establishing state plans but dropped the idea because the states would have to pay much of the program’s expenses.

“It’s possible that there will be states that are currently under federal OSHA jurisdiction that will look into or converting into a state plan,” said Aaron R. Gelb, one of Conn Maciel Carey’s co-managing partners. It could be done as quickly as six months, but ultimately it would largely depend on the administrative framework that already exists within that state, according to Gelb.

Finding subject-matter experts to staff a state work safety agency could be an uphill battle, Gelb added. Federal OSHA workers who have invested decades in their pensions may not want to start over with a state, he said.