Dirty Steel-Toe Boots, Episode 26: OSHA’s Role During President Trump’s Second Term

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Philip Russell:

Hi everybody. Welcome back to another episode of Dirty Steel Toe Boots. This is the first one of 2025. We are in the new year in 2025. I’m joined today by my friend and colleague, Dee Anna Hays, from right next door in my office here in Tampa. Hi, Dee Anna.

Dee Anna Hays:

Hi. Happy New Year. Thanks for having me on.

Philip Russell:

Welcome back, everybody, another episode. It’s been a couple of months since we’ve got one of these out, so thank you for your patience to the end of the year. This is a podcast by the law firm of Ogletree Deacons for employers and those that are in their legal safety and HR departments who need to better understand OSHA as an agency and the law that governs it. I’m your host, Philip Russell. I’m a shareholder in the Tampa office of the firm. I have a national practice in which I’ve handled over 200 fatality cases and hundreds of other kinds. We have one of the largest workplace safety and health practice groups in the country covering all 50 states with extensive experience in fed OSHA and state OSHA plans. Our approach is simple, but maybe not so easy. We help clients avoid or minimize OSHA citations and improve safety.

And just a reminder, everybody, this is a podcast about education, not about legal advice for specific circumstances, but as an employer it is important for you to know what you can and cannot do, but also what OSHA can and cannot do. You can’t hope to hold the agency accountable to law if you don’t know something about the law. So with that educational qualifier in mind, Dee Anna, we’re going to do some educating and maybe some speculating today. So the topic today is OSHA Under Trump 47. If I had a subtitle it might be, It Might Not Be What You Expect.

Dee Anna Hays:

Absolutely. I think it’s a timely topic of course, and something that will be interesting to delve into. And as someone who is part of the firm’s workplace safety group and also co-chair of the Multi State group, I’m very interested in this because we’ll get into some of the details, but where we might see some federal rulemaking fall by the wayside, and in the meantime we might have states getting into the game and creating more state level rules and regulations.

Philip Russell:

All right, well, and here’s my overall comment is I don’t think that we should look at Trump 47 as being the same thing as Trump 45, and certainly not the same thing as a traditional Republican administration. And we’re going to go through why I think that in a moment. But it is really an interesting dynamic to see. There’s a lot of… Actually, I’ll give you two reasons why I think that may be the case. Number one, I’m going to go before the election, and it was actually at a moment in time in which we had the vice presidential debate between Tim Walz and JD Vance. And there was a discussion about paid leave in Minnesota, which is one of the more aggressive statutes in any of the states. And Governor Walz was asked about it by the moderator. And it was interesting to me, not so much what Senator Vance said, it’s what he didn’t say.

Traditional Republicans, you would’ve expected to not have been in favor of that idea. Not necessarily that they don’t want people taking time off or paid time off, but just not wanting it as a government statute or law rule or regulation. Senator Vance said nothing. And then that moment, I penned that moment and said, “Let’s come back to that one.” And this is that day in which I’m coming back to that one, looking at that and saying that there is a populist influence I think that comes from Senator Vance and perhaps others that would show that maybe this might not be the same as traditional Republican administrations, at least from a labor and employment perspective. So that’s point number one.

Dee Anna Hays:

And that’s an interesting point and I think you’re correct. And another way to look at it too is on the paid leave piece, I think a lot of employers have known this is coming for some time and we have a patchwork of different requirements, like we see in the OSHA world with state plans and states that have their own heat stress requirements and this idea that is it better for businesses to have one consistent federal standard that supersedes potentially this patchwork of state and local regulation?

Philip Russell:

Well, another one, I reminded myself of one. One of the first speakers at the Republican National Convention before the election was the president of the Teamsters. And first time ever that a Teamster’s president had spoken to a Republican National Convention. And again, and when I listened to the speech, I thought to myself, “Self, these are not traditional Republican things he’s discussing,” but I think that he got invited there for a reason. So now post-election, certainly what would indicate to me that I think maybe things might not be as you would expect from Trump 45 or from a traditional Republican administration, is who’s going to lead the Department of Labor. So at this point, we don’t know who’s going to lead OSHA, but we do know that incoming President Trump has indicated that he’s going to nominate Representative Lori Chavez-DeRemer. So Representative Chavez-DeRemer, soon to be Secretary Chavez-DeRemer is somebody that when that name first hit the news we, employment lawyers, said, “Who?”

Dee Anna Hays:

Who’s that?

Philip Russell:

Exactly, she wasn’t someone that was on anyone’s radar that does this full-time for a living. I think that’s also true of our friends in our DC office and even friends of ours and other firms and other big national employers and associations. There was a big head scratcher there. But what we do know about Representative Chavez-DeRemer is that her father was active in the Teamsters. And really it’s no secret now that the head of the Teamsters and other unions her in this role. They want a seat at the table, they want a seat in the administration and they’re getting it through her. And so that’s another thing that post-election really indicates to me that you may be… The Secretary of Labor, the Department of Labor with OSHA being one of its departments, may not look the way that you would expect it. Do you think the same thing?

Dee Anna Hays:

I think it’s a good call out. I think the Trump campaign put a lot of effort into securing some support from the unions, which was unique and they got it. So I think it’ll be interesting to see how far that goes with respect to actual enforcement. Once some of these new leaders are in place, I think we’ll have to wait and see.

Philip Russell:

Well, and there’s a lot of things that are still hanging out there. We’ll cover those. We’re going to talk about a couple of items and then maybe again, do some speculating about what might to expect. But let’s get started first of all, with the proposed heat illness standard, and of course the big question there is will it survive? The notice of proposed rulemaking was out. They’ve now issued, that was back in August of 2024, then the proposed rule has been open for public comment. The public comment period closes on January 14 unless it’s extended once again. And if you haven’t, well, I know you’ve read it, but speaking to our listeners, if you haven’t read it, it might take you a while. It is one of the more lengthy standards that you’ll find if it makes its way into the set of OSHA standards. So what say you? Do you think it’s going to survive?

Dee Anna Hays:

So as you said, this is a huge proposed standard that would create a lot of new burdens on employers. If I had a crystal ball, I would say it does not survive in its current form. So what that ultimately looks like, I’m not sure. I think we could see, as you said, the comment period get extended and extended and then OSHA just letting it lay for a while. I think we could see potentially some significant revisions to the rule, or it could be abandoned altogether because OSHA doesn’t need this rule to enforce hazards related to heat. OSHA has already been doing that through its general duty clause and could continue to do that without the standard ever coming into play.

Philip Russell:

Well, no, but you’re not saying at the end of that employers aren’t doing or don’t do something or don’t have some enforcement risk when it comes to OSHA right now.

Dee Anna Hays:

Absolutely right. So OSHA will still look at heat as a hazard under the general duty clause, it just wouldn’t be able to pinpoint some of the new requirements of this rule. For instance, the proposed rule would indicate that employers have to have a heat safety coordinator at each work site that’s responsible for monitoring, for making sure that breaks are provided and paid breaks in certain instances. There’s an initial heat trigger of 80 degrees Fahrenheit and a high heat trigger of 90 degrees Fahrenheit, and that’s basically winter in Florida when it’s 80 degrees heat index. So there are many states where this would apply the majority of the year, and the proposed rule doesn’t make any distinctions in its current form for geography or other unique differences by industry.

Philip Russell:

That 80 degrees always makes me chuckle because of course sitting here in Florida… Although today it’s cold.

Dee Anna Hays:

It’s freezing.

Philip Russell:

So it’s cold. But of course we do have that statute that if it gets below 60 in Florida, the governor has to declare a state of emergency.

Dee Anna Hays:

That’s right. And issue it to everyone.

Philip Russell:

Exactly. But yeah, we get cold easier here. Category five hurricane, no problem. We’re ready to go. You make it cold for big winds. The point there is that OSHA does have the general duty clause, and it does have a national emphasis program from April of 2022 that it is used, that you and I have dealt with many times, and at least there there is still some flexibility in terms of how an employer might go about implementing some feasible means of abatement for heat, which you’ll see the rest, the shade, maybe breaks, things of that nature and water. But this proposed rule is so detailed that there are so many traps for the unwary and difficult things with which to comply. One of the questions, lots of legal questions that come into play here, one is why 80 degrees on the heat dome, and it’s heat index, it’s not air temperature, so it’s got to include humidity, which doesn’t really help us.

Dee Anna Hays:

No.

Philip Russell:

So it basically means every inspection you and I have dealt with in the last few years of Florida turns into a heat inspection. And so that’s one question is why 80? Why not 82 or 86?

Dee Anna Hays:

Cal OSHA uses 82, so why pick 80?

Philip Russell:

Exactly.

Dee Anna Hays:

It’s very interesting. There are six states that have their own heat requirements. So in addition to California, it’s Colorado, Minnesota, Oregon, Washington, Maryland, and Nevada as the newest to the list. So it’s like, how can we make sure there’s consistency again for multi-state employers who are trying to develop a program that’s going to work company-wide?

Philip Russell:

That’s right, good point. Especially from your multi-employer perspective and experience. So the other issue, one of the concerns I’ve got is this acclimatization where you’re supposed to slowly work someone into a hot working environment with what, 20, 40, 60, 80% workload. Well, how do you know? How do you know somebody’s working a 20% workload as opposed to an 18% workload? And so are we hiring an industrial hygienist and maybe industrial engineers? I don’t even know who do you hire for that to make sure that you know exactly the workload on every worker and how do you consider physiology and how does that come into play? I just think that is a absolute trap for the, not only the unwary, but the trap, the wary. Because even employers that are trying hard, what if you miss those marks? Well, there’s a citation item right there.

Dee Anna Hays:

That’s right. And what about fluctuations? Like here in Florida, it could be a high of 50 degrees one day and a high of 84 the next day. And does that mean you have to start all over on the acclimatization process if you get a spike in heat? I think there are a lot of unanswered questions like you said. And also how do you account for employees that are part of a job shadowing for orientation that really aren’t doing any work at all, they’re just observing others doing work, and so they’re not exerting themselves. Do they even need to go through this? Interesting.

Philip Russell:

Yeah. And then once you hit that 90 degree, that high heat trigger they call it, and there’s a requirement of paid breaks, I don’t know how that works. I’m not quite sure that an occupational safety and health agency can get into the business of wage and hour. And I guess that’s the part that would likely be challenged in court if this rule were to become final.

Dee Anna Hays:

Agreed.

Philip Russell:

At least one of the parts, maybe there are others too. Okay, so it may not survive in its current form, but that’s not to say, again, put in context everything we just discussed about Trump 47 and how it may not be what you expect, there might be something. So maybe the new OSHA decides that they don’t like this particular proposed standard, but they don’t want to go back to doing just general duty. There might be something in between and that’s something that maybe it’s a performance standard where it’s similar to a PPE standard where an employer might have some discretion as to what it does, but it has to do something. Do you think that’s possible?

Dee Anna Hays:

Definitely. I think it’s a possibility and it seems like it would be a lot easier to swallow for many businesses.

Philip Russell:

Allow some flexibility yet still have some compliance and enforcement requirements. I guess we’ll see.

Dee Anna Hays:

We’ll see.

Philip Russell:

Well, I skipped over that issue, but now I’ve just touched upon it, who’s going to run OSHA? We don’t know.

Dee Anna Hays:

We don’t know. I mean, Doug Parker is still there as of today, so we’ll see if he stays or if he goes.

Philip Russell:

Yeah, indeed. Well, I don’t know the answer to that question either. And in terms of the timing, I would expect sometime in the next few weeks or months we’ll know. It seems that historically you want to get the SOL, the Secretary of Labor, in place first, but this transition team has been moving pretty quickly. So maybe we’ll find out sooner. And again, I’m not so sure that traditional processes are in play here, so we may find out sooner or later, but we will be watching. That’s something to be watching is who’s going to run OSHA? Heat on the standard, we covered that. What about the walk-around rule?

So this, folks, you may recall is a standard that is now in force and effect that says that, I’m going to paraphrase this of course, but it says that essentially OSHA can bring someone along for the walk-around part of an inspection who’s not an employee of the employer, but it’s somebody that the compliance officer at OSHA deems to be an employee representative. There’s a lot of legal issues there and whether or not OSHA has the legal authority to define employee representative in the statute. But setting that aside, what do you think about Trump 47 and the walk-around rule? Do you think there will be an effort to pull that one back or go through… You have to go through rulemaking to get rid of a rule is one pathway, but do you think that Trump 47 will try to get rid of this one or does it stay?

Dee Anna Hays:

So the interesting part about this one to me is that it’s already subject to legal challenge. So the US Chamber of Commerce, along with many other business groups, has filed a lawsuit challenging the rule, saying exactly what you just said, that OSHA has exceeded its statutory authority in promulgating the rule, and that it also conflicts with the National Labor Relations Act. And on a practical matter, they say that this gives unfair and unreasonable access potentially to union organizers, activists, and potentially even plaintiff’s attorneys or competitors to their workplaces because there really aren’t any parameters on who can be selected as the employee representative if the compliance officer deems it to be reasonably necessary to conduct a thorough inspection. So that’s a very vague standard. So what could happen potentially is a settlement of the case that involves dropping the rule in its current form. And that might be a way to do it without causing as much upset to labor unions if the Trump administration is concerned about that and the publicity.

Philip Russell:

So maybe a rewrite depending upon how the litigation goes?

Dee Anna Hays:

I think so.

Philip Russell:

Okay. So that’s one to watch on the courts, but I tend to agree, I think that unless it goes down in the courts, I think what I’m looking for here is that I don’t think Trump 47 tries to pull it back, but I guess we’ll see.

Dee Anna Hays:

We’ll see.

Philip Russell:

This is the speculation part of the program today.

Dee Anna Hays:

It’s fun.

Philip Russell:

It is. All right. What about enforcement through inspections and citations? So typically speaking, you would say that an enforcement, the number of inspections, conduct the number of citations, even the number of compliance officers hired that sort of enforcement data, that tends to go down in traditional Republican administrations, and even went down under Trump 45. And that may have been a COVID cause there so maybe if we were to somehow adjust for COVID, still maybe make a working assumption here that it was less than under Democratic administrations. But what do you think about Trump 47? Reading the tea leaves here, do you see it being the same that maybe inspections and citations and number of compliance officers goes down?

Dee Anna Hays:

So this is an interesting question and although it was at a historic low under President Trump’s first administration, like you said, we also had the pandemic coming into play and what we really saw was an effort not fill vacancies that were created by the agency. But on a practical level, I think you and I, particularly in the Southeast and Florida, didn’t see a change from day-to-day operations of our local OSHA offices. And because OSHA operated without a head of the agency for the entire first Trump presidency, I think it was business as usual at the local area offices and at the regional level, we just saw more offices doing their own thing and really the personalities of the area directors and the regional directors came through in those inspections. And I didn’t see a big shift on the day-to-day. What do you think, Philip?

Philip Russell:

Yeah, I agree. And I think on this particular issue, I think we should be very cautious about predicting a decline in these three things. And again, talking about inspections, citations and then also maybe a number of compliance officers employed by the agency. I don’t know. And that’s going to dovetail into the issue of whether or not we’ll see any DOGE action, the Department of Government Efficiency. Are we going to see any influence from there? And I don’t know, I think we’re going to have to wait and see, but I right now think that it should be… I would be very cautious about expecting a decline. I think that probably employers should be considering the possibility that those things stay steady, potentially increase. Again, I’m going to now point to that more populist influence, the big labor influence and Laurie Chavez-DeRemer being the Secretary of Labor. We don’t know who’s going to head up OSHA, but it seems to me that there could be a move in the direction. This might be more, at least from an OSHA perspective, it might be more of a typical Democratic administration as opposed to a traditional Republican administration.

Dee Anna Hays:

It could be, and safety is a relatively bipartisan issue. It seems like no side is going to win if workplace safety enforcement goes away. So I think it’s also difficult to attack this agency. And it doesn’t seem like so far it’s been one of the stated priorities of the incoming Trump administration either.

Philip Russell:

Yeah, I don’t think that it’s going to be a dramatic change one way or the other. I don’t know that for sure [inaudible 00:20:13] the qualified, this is the speculative part, but it’s interesting to discuss and consider where we might be going. So final issue here, actually, I’ve got a bonus topic I’m going to ask you about in a minute, but let’s just wrap up the Trump 47 on the final issue of that I mentioned a moment ago, so is DOGE, will Trump 40 do a review of OSHA? And this was my biggest really, I guess excitement because I thought that we’ve had the OSHA Act since 1970, we’ve had OSHA and the Review Commission at the same time, we’ve had over 50 years experience with this agency. And for a large part, there’s not really a lot of difference among administrations historically speaking.

The agency’s existence certainly seems to have pushed workplace fatality and injury data down over time. But lots of good questions, legitimate questions about whether the agency is acting within its statutory authority or are there some things outside its authority. And really I think it’s an opportunity, I was excited thinking there might be an opportunity here to do that fresh review. And I’m not saying it’s not going to happen, but I must say from the employer’s perspective, I’m certainly am concerned that Lori Chavez Chavez-DeRemer may not be on board with that concept of doing a full review to see where we are. One of the ideas I’ve thrown out recently just throwing this out there for innovation is why is OSHA organized geographically?

It’s my view and I care about safety deeply, being a management-side lawyer, I think we influence it all the time, it’s very important to me as you know, and I know it’s important to you. But I’ve often wondered why are we not more focused on an industry basis? OSHA issues these national emphasis programs, but they don’t attach any resources to them. They just expect the regional offices and the area offices to just be essentially the same, one is the same as the other. And I don’t think that’s very efficient in my view. I think we ought to start with the data of where the injuries and fatalities are happening and target those industries and then put resources with it if we’re going to go down that pathway. Does that make sense?

Dee Anna Hays:

Yeah, it does make sense. And looking at the overall review too, it seems like that could even be warranted, is the general duty clause territory. It seems like that is where OSHA has pushed the envelope and got struck down. We saw the same thing with COVID, now we’re seeing it with heat stress and potentially this walk-around rule. But when there aren’t specific standards and OSHA hasn’t been successful in getting the decisions that it might want under the general duty clause, it tries to think outside the box and usually steps over the line in the government’s opinion.

Philip Russell:

Yeah, indeed. Well, and also, I mean Loper Bright, the decision from the Supreme Court, I can now say last year, in 2024, that is reigning in executive agency’s historic authority, I should say historic for about 40 years, at least temporary historic authority to determine whether or not it’s acting within its scope. And that, what was called Chevron deference, where the courts had to defer to the agency’s reasonable interpretation of its own authority, well, that’s gone. And so that combined with the DOGE group, and maybe there’s some innovation, I guess at this point, we really just don’t know. But it is something that I think employers ought to be looking for.

Dee Anna Hays:

Agreed.

Philip Russell:

And be mindful of is, is this going to happen? But none of this, folks, is to say that you should take your eye off the ball on safety because employers that get it and take safety seriously, I hear this from our safety professional clients and friends all the time, is that they don’t open up the OSHA book of standards to determine whether or not they need to have a safe place to work. They’ve got other reasons, and it’s not to say they ignore the OSHA standards, but the way they describe it is they have a higher standard.

Dee Anna Hays:

That’s right. It’s the minimum. And many of them do more.

Philip Russell:

And that’s, again, to be fair, that’s not true of everyone, but certainly is true of a lot of employers out there. Okay, bonus topic, and then we’ll wrap this up in a minute or two. There is this thing called the Severe Injury Reports Dashboard that you first brought to my attention, because OSHA didn’t make a big deal of this, and all of a sudden it’s there. What is this thing?

Dee Anna Hays:

That’s right. It blows my mind that we haven’t seen more publicity on this, but basically what this is is a dashboard that compiles data whenever employers have to report a severe injury or illness or a fatality. And that’s under the reporting rule, not under the record keeping rule and compiles all of the information. And it’s very specific. So you can drill down and search by a specific company’s name and it will show you the address where the incident happened. It will tell you the type of hazard, the type of injury. It will have a narrative description of what happened, and it’s kind of amazing. So you could search ABC Company, amputation, and it would give you, boom, the data set right there of how many amputations this company experienced. So certainly we don’t know how OSHA is going to use this information yet or how other third parties might use this information, but it is now publicly available and really is more reminiscent to what we saw under Secretary David Michaels and the public shaming from OSHA in the past.

Philip Russell:

I agree. I actually have had a little bit of, okay, I’ll say fun because we’re dorks like that, but I had a little bit of fun in looking at the list. I pulled 10 years of the reports in a spreadsheet from an industry I spent a lot of time working in and I looked through. And it was interesting to see, well first of all, a lot of cases that you and I have handled, and I recognized the employer in the report. But what was also interesting is there were at least a good third of those that I saw on that list that were not even reportable.

Dee Anna Hays:

Wow.

Philip Russell:

And so I’m going to use it from an educational perspective. And so at least for my purposes and with clients is to say, “Look, these are some things that were reported to OSHA by employers.” I’m not going to name any employers, no need to do that, no shaming, but I’ll use it. I think we should use it. And I think employers might want to consider looking at it from the perspective of, wow, there’s a lot of over-reporting, there’s a lot picking up the phone and calling OSHA when you didn’t have to.

Dee Anna Hays:

That’s a good takeaway. I think another really good takeaway is to give a lot of thought when you have to make one of these reports to OSHA on how you’re going to do it and what you’re going to say. So of course you have the option of calling it in to the hotline number on OSHA’s website or to the local office, or you can use the online tool. And I don’t know how it’ll show up. If you call it in, is it the duty officer’s recitation of what happened that goes into the narrative box? And if you want control over that, might you want to consider using the online tool where you write in the description of the incident and what happened? And certainly think about being mindful when you’re filling those out and that all of the fields are not mandatory, so less can be more.

Philip Russell:

Sounds like a subject for another episode of Dirty Steel Toe Boots on How to Report to OSHA.

Dee Anna Hays:

Perfect.

Philip Russell:

All right, well Dee Anna, thank you so much for joining today.

Dee Anna Hays:

Thanks for having me.

Philip Russell:

Yeah, this was, folks, as we qualified all this in the beginning, unlike some of our usual episodes where we’re doing some, how to do this or how not to do that and things employers ought to consider, a little bit of speculation today. But that’s what we do in this space. We watch OSHA all the time to see what they’re going to do and what they’re not going to do, whether they’re following the law, whether they’re not following the law, and work with our clients to help them get through those scenarios. Right now, there’s a lot of, I don’t know. So it was fun today to spend a few minutes with you, Dee Anna, to speculate and see what happens. But in the next few weeks and months, we will know and we’ll be right back here with you folks on another episode, helping you navigate through it all. Happy New Year for the last time and we’ll see you next time.

Dee Anna Hays:

See you next time.

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