Seyfarth Synopsis: With another dramatic reversal from a pro-labor Democratic administration to a second Trump administration, we anticipate that OSHA is likely to pivot away from its current enforcement-heavy agenda to a greater emphasis on cooperation with the business community.

As we try to anticipate the shifts of a second Trump administration, supported by a Republican-controlled Congress (albeit with very slim margins), these are some of our projections on what the future may hold for employers on the OSHA front during the coming second Trump Administration.

From the first Trump Administration, we know that the number of Occupational Safety and Health Administration (OSHA) inspectors and OSHA inspections dropped significantly.  During the Obama Administration (2008-2016), the number of OSHA inspectors fluctuated but generally stayed above 900, rising to 1,059 inspectors from 2009 to 2011, then declining to 943 from 2011 to 2015, then rising again in 2016 to 952 inspectors.  However, by the close of fiscal year 2020, the last year of the first Trump Administration, that number had fallen to 790.  By the end of 2023, there were 878 inspectors at OSHA, representing an 11% increase from fiscal year 2020.  Those numbers are likely to fall below 800 again, if not further.

We also know that that regulatory legal landscape is very different now than it was during the first Trump Administration, due in large part to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, No. 22-451, 603 U.S. __ (2024).  There, the Supreme Court held that courts, not agencies, are best situated to interpret ambiguous statutory provisions, even in areas of agency expertise.  In doing so, the Supreme Court has reined in agencies, like OSHA, from effectuating their enforcement agenda based on the agency’s own interpretations of its regulations.

Against that background, and consistent with the soon-to-be-president’s stated goal of a more limited federal government, including less federal government involvement in the workplace, we can expect:

• Fewer and slower inspections and a slimmer regulatory agenda.  During the first Trump Administration, OSHA faced initial years of flat budgets and OSHA had a difficult time competing for safety professionals with private industry when trying to hire compliance officers.  The agency will very likely face the same pressures again during the second Trump Administration.  We also anticipate fewer new OSHA regulations, fewer OSHA Emphasis Programs focusing enforcement on specific hazards and industries, and less programmed inspection activity.

• Substantially reduced emphasis on whistleblower and anti-retaliation claims.  The Biden Administration invested significant resources in bolstering OSHA’s and the Department of Labor’s whistleblower investigation programs.  We anticipate a rollback of those efforts and potential return to more business-friendly Voluntary Protection Program (VPP) and cooperative compliance programs over time.  

• Abandonment of OSHA’s heat safety rule.  OSHA published its proposed heat safety rule and began accepting public comments in summer 2024.  The rule would apply to all employers and be triggered when employees are exposed to temperatures of 80ºF for more than fifteen minutes in any given sixty-minute period.  The public comment period will close on December 30, 2024, and there will very likely not be enough time to consider the public feedback and finalize the final rule before the end of the Biden Administration on January 21, 2024. Republican elected officials recently have expressed opposition to heat illness protection, with the Texas and Florida governments passing laws preventing municipal rules relating to water breaks. Given the anti-regulatory orientation of a second Trump Administration OSHA, we anticipate OSHA bringing the heat illness rule-making process to a screeching halt.

• Potential withdrawal of OSHA Walkaround Rule.  On April 1, 2024, the Federal Register published OSHA’s final rule revising its regulations regarding whom employees can authorize to act as their representative(s) to accompany compliance officers during on-site OSHA inspections.  The revised regulation clarifies that employees have the right to designate a non-employee, third party to be their representative during the physical walkaround. In doing so, OSHA has effectively indicated non-unionized employees can look to unions for support during an OSHA inspection. 

The rule is currently the subject of litigation in Texas; a coalition of business associations has filed a lawsuit against OSHA, captioned Chamber of Commerce of the United States of America, et al. v. OSHA, et al.  Even if the Chamber of Commerce does not prevail, a Trump-controlled Department of Labor could choose to withdraw the new rule. The rule already passed the period for withdrawal by Congress under the Congressional Review Act.

• Leaders with pro-business leanings overseeing OSHA.  During the Biden Administration, the Department of Labor was led by individuals with pro-labor ties: former union leader and Boston Mayor Marty Walsh, and Julie Su, the former head of California’s Labor and Workforce Development Agency who formerly worked as a civil rights lawyer.  OSHA was led by Doug Parker, who began his legal career as a staff attorney at the United Mine Workers of America.  President Trump is likely to nominate an Assistant Secretary of Labor for OSH with ties to the business community rather than organized labor. 

Employers will recall, though, that OSHA went without a confirmed head of the agency during the entire first Trump Administration after President Trump nominated Scott A. Mugno, formerly the Vice President of Safety, Sustainability and Vehicle Maintenance at FedEx Ground, for the role.  His nomination never received U.S. Senate approval, and Deputy Assistant Secretary of Labor Loren Sweatt remained in charge of the agency until the Biden Administration.

In a somewhat surprising move, President-elect Trump has proposed Republican Congresswoman Lori Chavez-DeRemer as Secretary of Labor.  Ms. Chavez DeRemer, who was defeated by her Democratic opponent in November, is known as a relatively pro-labor Republican and past supporter of the PRO Act, a legislative effort during the Biden Administration to protect Union organizing rights.  While Ms. Chavez-DeRemer may face opposition in the Senate, we anticipate she would be more open to union policy agendas, including maintaining the OSHA Walkaround Rule discussed above.  President-elect Trump has not yet nominated an Assistant Secretary of Labor for OSH; the choice of nominee may further clarify the agency’s enforcement agenda for 2025.

• Focus on egregious and willful offenders, limiting penalties for first time offenders and small businesses.  While President-elect Trump has occasionally distanced himself from Project 2025, many believe it contains a reasonable forecast of policy goals for the second Trump Administration, including with respect to OSHA.  Chapter 18 of the plan, which focuses on the Labor Department and related agencies, refers to OSHA in this way:  (1) it proposes that Congress and the DOL should “exempt small business, first-time, non-willful violators from fines issued by the Occupational Health and Safety Administration”; (2) the DOL should clarify that a home office is not subject to OSHA regulations; (3) federal labor agencies should use their discretion under the law to “exempt small entities from regulations where possible”; and (4) OSHA’s focus should be on health and safety inspections on egregious offenders. While we foresee Trump administration support for a rule limiting OSHA penalties to small businesses receiving their first OSHA citation, we do not anticipate that OSHA will exempt small general industry and construction employers from most OSHA standards.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.