Work Safety Agency Chiefs to Balance Rulemaking, Trump Rollbacks

A pair of just-confirmed workplace safety agency leaders will have to balance completing rulemaking on key issues like heat safety, while also following White House directives to slash regulations.

David Keeling was confirmed to head the Occupational Safety and Health Administration Oct. 7 alongside Wayne Palmer, who will helm the Mine Safety and Health Administration.

Both leaders inherit their respective agencies at a time where the Trump administration has advanced a slew of proposals that either tweak or scrap regulatory policies. Department of Labor agencies have also shifted to a compliance-assistance focus including by establishing opinion letter programs aimed at producing more guidance on how labor laws apply to specific employer situations.

That indicates proposals like OSHA’s heat rule could be tempered to a more performance-oriented approach, allowing private companies free rein to meet requirements to offer workers relief on hot days.

Businesses have complained the Biden-era proposal is unnecessarily broad and imposes excessively burdensome requirements, like a 20% acclimatization period. The proposal sets an initial trigger at a heat index of 80 degrees Fahrenheit and a high heat trigger of 90 degrees Fahrenheit for when employers must implement measures to protect workers.

A heat “standard that would really require employers to do things that they don’t feel like doing is probably unlikely to emerge from OSHA at this point in time,” said Susan Bisom-Rapp, a professor at California Western School of Law.

OSHA Deputy Assistant Secretary Amanda Laihow, who led OSHA as Keeling wound through the confirmation process, oversaw the informal hearings for the proposal over the summer. Keeling is well-positioned to take a Trump-era version over the finish line, according to Jason S. Mills, a partner at Sidley Austin LLP.

“He will arrive in a position where that agenda is moving forward, and he can be more public about it,” said Mills. “They will now both be there to work together, managing OSHA and getting out that message.”

Loosening Workplace Safety Regulations

Keeling worked at Amazon.com Inc. from 2021 to 2023, and in numerous safety positions at United Parcel Service Inc., where he started his career as a package handler.

At OSHA, the former corporate safety director will address risks like heat and violence in the workplace, while delivering on the Trump administration’s goal of narrowing or removing provisions from more than 40 workplace safety rules deemed as slowing technological and economic development.

He is expected to bring “a focus on cooperation with business, and especially small businesses,” said Mills.

OSHA offers several cooperative programs where companies can work with the agency to prevent injuries in the workplace. For example, the Voluntary Protection Program allows companies to undertake an on-site evaluation in order to be exempted from inspections by the agency.

The larger deregulatory environment Keeling is entering into won’t allow for a pro-worker approach in rulemaking, Bisom-Rapp said.

OSHA also is looking to narrow the use of its general duty clause when enforcing safety regulations.

The agency plans to exclude hazards that are “inherent and inseparable from the core nature” of a job, effectively limiting use of the agency’s catch-all enforcement tool to hold employers liable for workplace injuries and deaths.

Worker advocates said this could be harmful to OSHA’s ability to hold employers accountable for addressing hazards such as ergonomics, which the agency doesn’t have an applicable standard to address. The clause has also been used to address heat safety.

“We’re entering a new gilded age where employers get to treat their workers the way they want to,” said Bisom-Rapp.

Personnel Management, Silica Challenge

Similar to Keeling, Palmer faces pressure to balance a push to deregulate the industry by reworking MSHA’s oversight while maintaining guaranteed protections for miners. And like Keeling, he comes from the industry he’s now tasked with regulating.

Palmer will take over at a time when the agency’s undergoing personnel changes, a sweeping overhaul of mine safety enforcement, and a challenge to a Biden-era silica dust rule.

“There have been a lot of retirements, the deferred resignations, the combining of some district and field offices, so I really think his number one task is going to be managing personnel,” said Arthur Wolfson, a partner at Fisher & Phillips who represents clients in the mining industry.

Before Palmer’s confirmation, MSHA also listed nearly 20 new items in its unified agenda that seek to amend regulations. The administration wants to eliminate discretionary authority for MSHA district managers to approve the contents of mine operators’ ventilation plans, among other items.

Palmer returns to MSHA after working as an executive at the Essential Minerals Association, a trade association for the industrial minerals industry. The EMA, where Palmer was an executive, filed an amicus brief in support of the legal challenge to the Biden-era silica rule.

Attorneys anticipate substantive developments in the ongoing litigation now that Palmer has been confirmed to lead the agency. Notably, MSHA hasn’t taken a clear position in the challenge since the Trump administration took over.

The National Stone, Sand & Gravel Association, one of the challengers to the final silica rule penned a letter of support for Palmer.

He will now play a significant role in MSHA’s approach to the challenged rule, which requires mine operators to cut the amount of breathable silica dust in the air in half.

“There’s a good chance that he will not enforce the silica rule, and that’s what the big thing is now,” said Anne Lofaso, a labor law professor at the University of Cincinnati.

MSHA faces two major hurdles to a potential settlement: under the Administrative Procedure Act, any negotiated changes to the rule would need to undergo rulemaking again, and any weakening of protection in the rule would violate the Mine Act’s no less protection clause—likely subjecting it to a new legal challenge.

“We should expect non-enforcement in some way whether it’s through delay, through repealing and then of course that would be challenged,” Lofaso added.