Last week, the House Subcommittee on Workforce Protections met for a hearing, “A More Effective and Collaborative OSHA: A View from Stakeholders,” The timing of the hearing says it all: there is no Trump administration official confirmed as the head of OSHA and there is no political appointee to act on the recommendations stakeholders offered at the hearing, making the direction in which OSHA will head under President Donald Trump unclear at best.  

The 2017 nomination of Scott Mugno, a FedEx executive, has not yet been voted on by the full Senate. The Committee chair, Rep. Bradley Byrne (R-AL), urged the Senate to move quickly to confirm Mugno. The hearing reflected the wide gulf between the Republican and Democratic views of an effective OSHA.

Republicans consider the Obama OSHA to have emphasized confrontation over cooperation and that more workers’ lives can be saved and injuries reduced through easily understood communication of existing standards and reliance on cooperative OSHA employer programs.

Democrats seek more OSHA inspectors and inspections, required record keeping of workplace injuries, and reinstatement of many of the regulations that the Trump administration has withdrawn.

Byrne, a former labor lawyer, described the purpose of the hearing as an examination of the effectiveness of OSHA, focusing on how the agency is ensuring safe workplaces and promoting smart, responsible regulatory policies for both employees and employers. Byrne said that many businesses had reported that while OSHA’s intentions are well meaning, they are unworkable in the real world. OSHA compliance costs are difficult for businesses, particularly small businesses, like funeral homes. Byrne praised the programs at OSHA designed to help businesses in a proactive way, such as the Voluntary Protection Program.

“Today’s hearing will focus on how OSHA can work more cooperatively with job creators, especially in the small businesses community, to expand its compliance assistance efforts and for employers to provide the safest and healthiest workplaces possible,” Byrne said.

Ranking member, Mark Takano (D-CA) noted that two years had passed since the committee last held an OSHA hearing and, in the meantime, nearly 10,000 workers had been killed on the job and at least seven million workers had suffered serious occupational injuries. Takano read a statement from the widow of an Ohio roofer, who died when he fell twenty feet from the roof of a home. The company settled for a $6,000 OSHA penalty and the widow is urging Congress to strengthen OSHA penalties.

The testimony of two of the four witnesses, one representing the Chamber of Commerce and the other representing the Tree Care Industry Association, epitomized the gulf in the assessment of the appropriate role for OSHA.

Eric Hobbs, who represents the Chamber of Commerce, is a labor lawyer like Byrne, and he described OSHA’s desired role as guided by the question: “How can we help employers keep employees safe?” rather than by the question, “How can we make sure we are making examples of bad employers, or catching as many bad employers as possible?”

Hobbs described several areas in which OSHA can improve. These include welcoming input from all stakeholders, overcoming the adversarial relationship between OSHA and employers, and regarding the business community as partners. The Chamber urged OSHA to make maximum use of the Small Business Regulatory Enforcement Fairness Act (SBREFA). In fact, NFDA members have successfully participated in SBREFRA panels sharing their views on the effective function of septic tanks in treating funeral home wastewater and the sufficiency of for existing infectious disease regulation of funeral homes.

The Chamber was highly critical of the enforcement methods OSHA uses to encourage employers to improve workplace safety, characterizing it as “regulating by shaming.” The Chamber complained that OSHA issued press releases when complaints were filed rather than when matters were resolved and failed to issue updated press releases when the amount of the penalties collected was reduced upon settlement. The Chamber considered OSHA, the employer and the employee all better off if inspections and closing conferences had the goal of finding solutions, instead of citations.

The Chamber urged OSHA to develop a new approach, even if enforcement were to remain as a core function. Instead, it said that OSHA should be seen as a resource for answers, making its guidance accessible and easy to understand. OSHA also should ensure consistency in interpretation among all the agency field offices and ensure that OSHA inspectors do not act in an antagonistic manner. The Chamber concluded by noting that OSHA had lost the trust of employers during the previous administration and must work hard to regain it.

Peter Gerstenberger of the Tree Care Industry Association (TCIA) is responsible for developing the association’s safety and training programs, expressed during his testimony frustration that OSHA was unable to issue a specific safety standard for arborists, an industry with a fatality rate that placed it in the top five most hazardous occupations in the United States.

OSHA and TCIA had worked in a collaborative manner in the past and there had been bipartisan support for a safety standard specifically for arborists. Instead, as is generally the case for funeral directors, OSHA regulates arborists through a patchwork of standards generally intended for other industries that fail to address many of the core safety issues the arborists face.

TCIA explained that an arborist regulation will set uniform standards for every OSHA inspector to apply and for every arborist to observe and would be widely communicated through outreach activities to promote safe practices.

The two other hearing witnesses were Dr. David Michaels, who served as the assistant secretary of Labor for OSHA under President Barack Obama (incidentally, Michaels was the longest serving OSHA assistant secretary on record) and J. Gary Hill, a small business contractor from North Carolina representing the National Association of Home Builders.

There is obviously a deep divide and, without leadership at OSHA, big questions remain about the direction in which OSHA will go under Trump.