Wait, Now Hurry Up: OSHA Changes Afoot

It seems to have finally occurred to the Department of Labor that there is about to be a change in administrations in a few months. It’s otherwise hard to explain why, after 7 1/2 years, DOL is suddenly and stealthily trying to make it harder for you to be protected from toxic chemicals in the workplace. If DOL could sneak in a new regulation before there’s a new president, Secretary of Labor Elaine Chao can continue to boost her legacy of harming the very workers her job it is to protect.

It was front page news in the Washington Post: U.S. Rushes to Change Workplace Toxin Rules. The Department of Labor is trying to push through a rule “making it tougher to regulate workers’ on-the-job exposure to chemicals and toxins.” Instead of disclosing this rule change publicly in a regulatory plan, allowing for input from agency staff, lawyers and outside experts, DOL instead quietly submitted the proposal to the White House’s Office of Management & Budget (OMB). After the draft rule is published, the public will only have 30 days for comment.

While the draft rule has not yet been made public, an early draft reviewed by the Washington Post shows that the agency is trying to change the process by which the risk of chemical exposure is assessed. Current policy requires an assumption that workers will stay in a job and be exposed to the same toxins for 45 years. Businesses have complained that this overstates the risk that workers are exposed to, as most workers nowadays don’t stay in their jobs that long. (See New York Sun article.)

While that may be true for most, there are some who do stay in a certain workplace (or in the same industry) that long, and their high level of exposure should serve as a baseline for everyone else. (With the ability to retire comfortably dramatically affected in the last several years, workers are forced to have even longer careers, and it would be nice if they were in good enough health to work as long as they need to and still retire healthy.) As the New York Sun article itself concedes, in many of these jobs, workers may work overtime and have less vacation time, than contemplated by the rule, so may have more intense exposure in shorter time periods than 45 years.

The new policy would also make it more difficult (by adding an additional round of challenges) to set new limits on workplace exposure. As epidemiologist and workplace safety professor David Michaels points out, “This is a guarantee to keep any more worker safety regulation from ever coming out of OSHA.” (See Washington Post article.)

Submitting this proposal in such a rush even contradicts the Administration’s own edict from Chief of Staff Joshua Bolten, who had ordered agencies to submit all proposed regulations by June 1 and “resist the historical tendency of administrations to increase regulatory activity in their final months.” (See Washington Post article.) It seems like Secretary Chao just couldn’t resist, given that in the last 7 1/2 years, the Department of Labor has only issued one worker-safety regulation, and that was one required by a court order.

After the first Post article was published, the Democratic leaders of both committees responsible for workplace safety, Sen. Edward Kennedy of the Senate Health Education Labor and Pensions (HELP) Committee and Rep. George Miller of the House Committee on Education and Labor, responded with outrage at DOL’s eleventh-hour attempt. Rep. Miller says,

For nearly eight years, this administration has consistently failed to respond in a meaningful way to the real health and safety threats workers face while on the job. But now they will stop at nothing to rush through a secret rule that will tie the hands of health and safety experts.

(See Washington Post article.)

With the light now shining on this proposed change, perhaps it can be stopped before it goes into effect. Otherwise, it will depend on who is elected as President. We could indeed see a swift regulatory reversal like we saw when President Bush took office: one of his first acts as President was to reverse OSHA’s ergonomic regulation that the Clinton Administration had spent years to carefully create, and which finally took effect four days before President Clinton left office. (See CNN article.) Or we might not, with this close-to-midnight change becoming the new standard we have to live with (or not live with, given its impact.)

Just another reason why the election matters for workers, so be sure you’re registered to vote.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.