A Trump OSHA Likely to Enforce Less, Make Fewer Rules

By Stephen Lee

June 2 — A Donald Trump presidency wouldn't spell the end of the Occupational Safety and Health Administration altogether, but it would almost certainly mean less enforcement and practically no rulemaking, sources tell Bloomberg BNA.

“The overarching concern is that this is an individual who basically doesn’t believe in rules,” Peg Seminario, safety and health director at the AFL-CIO, told Bloomberg BNA. “There's a real fear that this is someone who wants to come in and blow things up. And that’s really dangerous for working people, who need government on their side when it comes to worker protections.”

Trump, the likely Republican presidential nominee, has spoken repeatedly about his plans to eliminate federal agencies.

“We're going to get rid of so many different things,” he said during the February 25 Republican presidential debate in Houston. “We are going to cut many of the agencies, we will balance our budget and we will be dynamic again.”

Abolishing Agencies a Non-Starter

Realistically, however, a president can't unilaterally wipe out an agency or department that, like OSHA, was created by statute, Sarah Binder, a political science professor at George Washington University, told Bloomberg BNA.

Rather, Congress and the president would have to enact a law to eliminate such an agency. As president, Trump could only propose a bill to do that, Binder said. Even if OSHA were eliminated, implementing the OSH Act would devolve to other federal agencies without a law that specifically dissolves it.

Congress could also try to starve OSHA to death by refusing to fund it. But that step is unlikely if Democrats can win at least one house of Congress. Even under a Republican-controlled Senate, Democrats could filibuster a zero-funding bill as long as they held 41 seats (currently the Democrats hold 43 seats and two Independents caucus with the party).

Political Price Too High

More broadly, trying to erase OSHA wouldn't be worth the political backlash, said Baruch Fellner, an industry-side attorney with Gibson, Dunn & Crutcher LLP.

“OSHA would be seen, by the people at [Trump's] Office of Management and Budget and the West Wing who deal with minutiae, as a backwater agency,” Fellner told Bloomberg BNA. “And the only way that it becomes a substantial problem is if he were to abolish it, or attempt to. Putting a stick into the hornet's nest—that's politics he doesn't need.”

Binder agreed, noting that Trump “would need to sustain any public blame for shutting down some, or all, of the government,” if he moved to eliminate any agencies.

In the case of OSHA, that could be a costly move because polls consistently show it enjoys strong public support (44 OSHR 944, 10/9/14).

Aaron Trippler, director of government affairs at the American Industrial Hygiene Association, agreed that Trump wouldn't be likely to kill OSHA, but for a different reason.

“As a businessman, I am sure he knows the bottom line is all that counts, and he surely knows that health and safety will cost him if he makes mistakes,” Trippler told Bloomberg BNA.

‘Let It Limp Along.'

More likely, a Trump presidency, in conjunction with a Republican Congress, would simply try to reduce OSHA's budget.

That tactic has recent precedents: the Reagan administration cut OSHA's funding after the Carter years, and the George W. Bush administration did the same after the Clinton years, recalled Peg Seminario, safety and health director at the AFL-CIO.

“We know from past history that presidents who are hostile to OSHA can cut budgets and block initiatives in ways that undermine the agency,” Deborah Berkowitz, a former OSHA chief of staff and now a National Employment Law Project fellow, told Bloomberg BNA.

Another way of defanging OSHA would be to appoint an agency head with a stripped-down mandate to “review existing regulations, not put in any new ones, and perhaps work on those things that business might want,” Trippler said.

“He'll let [OSHA] limp along,” Fellner predicted. “Sometimes it'll do some good, sometimes he'll get a complaint about it, and that'll probably be the OSHA story under a Trump administration. It's going to be, ‘Don't bother me with this stuff.' ”

Labor Supporters Worried

Trump could further try to block any workplace or mine safety regulation that hasn’t been completed by the end of President Barack Obama’s term, Amit Narang, a regulatory policy advocate at Public Citizen, told Bloomberg BNA.

On the other hand, repealing the handful of major OSHA regulations finalized under Obama “would take much more time and work,” Narang said. “OSHA’s rulemaking process is one of the slowest, and that would apply to efforts to repeal rules through the rulemaking process as well.”

Trump could even find ways to use OSHA to serve his own ends. For example, Trippler suggested that he could use OSHA inspections to flag immigrants living illegally in the United States at construction sites and other workplaces. Trump has made deportation a key plank of his platform.

“Protecting these illegals will continue, but his first priority will be to try and send them home,” Trippler said.

Trump: Mines Are Safe

The Trump campaign didn't respond to requests for comment, and Trump has made few explicit remarks about OSHA on the campaign trail. At a May 5 rally in Charleston, W.Va., he said coal mines are already safe.

“It's incredible, the engineering now that's involved, and the safety, and all that's taken place over the last number of years, especially over the last 10 years,” Trump said. “And all of it's getting safe, and as it gets safe, they're taking it away from you in a different way.”

Later at the same rally, Trump blamed burdensome regulations for the economic downturn.

“Your industry, because of regulations, and nonsense regulations in many cases, I think your industry has been hit harder probably than maybe anybody,” Trump said. “But many industries have. The overregulation of our businesses is destroying families, is destroying jobs, is destroying businesses and is really hurting our country. And we're going to change that. We're going to change it fast.”

Scanty History of Citations

A search of OSHA's website turns up only a small handful of inspections linked to Trump's businesses. Trump International Hotel and Tower Las Vegas has been inspected four times since 2011.

In 2012, Trump National Golf Club in Torrance, Calif., was fined $1,120 after a worker cut his fingers on a lawn mower. That penalty was later negotiated down to $900.

Seminario noted, however, that much of Trump's construction work is performed by contractors and subcontractors, which wouldn't turn up in a cursory search of OSHA's website.

Last month, OSHA chief David Michaels told an audience of industrial hygienists that the agency would survive a Trump presidency (46 OSHR 505, 5/26/16).

“We will continue to perform great inspections, even when President Trump appoints Mike Rowe to be head of OSHA,” Michaels said, referring to the host of the Discovery Channel show ‘Dirty Jobs.'

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com