Seyfarth Synopsis: This week we are attending the ABA Occupational Safety and Health Law Meeting in Rancho Mirage, California. The meeting includes representatives from management, labor, and safety professionals, some who previously worked in government.

Tuesday, March 4

We are attending the ABA Occupational Safety and Health Law Meeting this week in Rancho Mirage, California. On Tuesday, March 4, the conference focused on the Mine Safety and Health Act, featuring numerous panelists with extensive knowledge of the Mine Safety and Health Administration (MSHA) and associated practice and procedures.

A key development discussed was the future of MSHA under the second Trump administration. This follows President Trump’s recent nomination of Wayne Palmer as the Assistant Secretary for Mine Safety and Health. Palmer is currently part of the Trump transition team within the Department of Labor and most recently served as executive vice president of a D.C.-based trade association representing the industrial minerals industry. Previously, he was a political appointee within MSHA during the first Trump administration, serving as interim Assistant Secretary and Principal Deputy Assistant Secretary.

The afternoon session shifted focus to the breadth of OSHA regulations and enforcement, including the legal basis for OSHA inspections and rights during inspections. The session highlighted the intersectionality of OSHA with other areas of law, such as labor law, privacy law, and whistleblower rights.

Wednesday, March 5, 2025

Today’s session featured a panel of employer and defense attorneys discussing the impact of recent United States Supreme Court decisions touching on subjects relevant to whether the Occupational Safety and Health Review Commission (OSHRC) will continue to function in its current state, as well as what levels of deference judges should give OSHA’s regulatory interpretations.

In the first, the Supreme Court held that the Seventh Amendment’s right to a jury trial applies to certain enforcement actions brought by an agency, making in-house administrative adjudication of such actions unconstitutional. This decision potentially opens the door for future challenges to OSHRC’s (and OSHA ALJs’) constitutionality. This could present numerous challenges for an Article III bench and litigators, such as conducting traditional discovery, educating judges on the applicable framework, and potentially leading to each state developing its own equivalent to OSHA, resulting in varied regulations, procedures, and policies for workplace safety citations.

The panel then discussed the implications ofanotherSupreme Court addressing the law regarding judicial review of administrative action and rulemaking by overturning the longstanding doctrine of “Chevron Deference.” The panel focused on how the decision expands the judiciary’s power to review and reject interpretations of statutes adopted by federal agencies, including OSHA.

With the judiciary’s expanded power, it is anticipated that employers will now be able to significantly challenge new or existing OSHA standards as exceeding OSHA’s authority under the OSH Act. For example, an employer could argue that a particular OSHA standard does not actually advance the health and safety of workers, and therefore exceeds OSHA’s statutory authority. Additionally, the decision is expected to lead to a slight decrease in broad agency action, raise additional issues for litigation, and create less certainty for employers now that agency deference has been significantly weakened, although “Auerdeference” (applicable to regulations) remains intact and prior decisions relying on Chevron deference are not overturned.

Regarding executive agencies, the decision may lead to a potential shift towards more legislative clarity and increased litigation over agency decisions. It may also reduce the authority for rulemaking, requiring more explicit support in the OSH Act for OSHA standards to survive legal challenges. Moreover, the implications may result in slower responses to complex issues as greater involvement from Congress, including further education, would be needed for detailed policymaking. Currently, there is a trend towards agency interpretation and guidance serving an informative and persuasive purpose, rather than being affirmative and binding.

After discussing these recent and other notable Supreme Court cases, a new panel of attorneys presented on what to expect with the recent change in presidential administrations, looking to the past to see what may remain the same and what may change. The panel, which featured former presidential appointees and former government attorneys, provided a historical overview of lessons learned from past presidential transitions and highlighted what practitioners should expect with a change of power, especially now that President Trump’s return to office is still within its pivotal second term’s first 100 days.

A notable point discussed was OSHRC’s role as the new administration implements its plan. Notably, OSHRC’s sole commissioner’s term is set to expire next month in April 2025, meaning OSHRC will be without any commissioner, a rare occurrence. In fact, there has not been a quorum within the Commission for almost two years. This leaves the Commission at risk of essentially withering, especially considering there is no recent news of any appointments in the pipeline. Moreover, with administration’s push to cut spending, the lack of a single Commission is of great concern. Without a Commission, no cases will be directed for review and will simply sit awaiting direction. Currently, 31 cases are waiting to be decided in front of OSHRC.

The panel then delved into how employers, associations, and advocates can be more proactive in creating better workplace safety practices and procedures, which can help reshape OSHA and bring the agency into a more collaborative relationship with those it regulates. With changes in political administration over the years, the agency’s involvement and relationship with those it regulates have gone through ebbs and flows. Regardless of political affiliation, the general consensus is a desire to deepen the relationship between the agency and the regulated body, specifically inviting OSHA to get more involved at an eye-to-eye level, rather than as a direct governing and rulemaking body.

Overall, the reasonable expectation for this current administration, based on President Trump’s first term, is that OSHA likely will not experience significant rulemaking efforts. As history suggests, we can likely expect a greater attempt to roll back recently developed rules in the past four years. In lieu of rulemaking, there is an expectation that the current administration will take a firmer stance on enforcing current rules (aside from those that may be rolled back) and forego adding new regulations. In turn, there is a reasonable expectation that the states will take rulemaking into their own hands.

We will continue to provide updates throughout the week.