A Roundup of Workplace Health and Safety News ...

OSHA Public Hearing on Proposed Heat Rule, Another Employer Lawsuit Challenges Constitutionality of OSHRC, Trump Continues Deregulatory Efforts, Join Me for a Webinar, and More!

There's a lot packed in here because there's a lot going on!

1. Register by May 2 to Testify at OSHA’s Public Hearing on the Biden-Era Proposed Heat Standard 

I find it surprising that the hearing scheduled by OSHA during the Biden-Administration is still moving forward as planned, but it is true. I had hoped that the Trump Administration would pivot the proposed heat rule to a standard with a performance orientation—providing more flexibility and allowing employers to tailor their program to their work environment and workers—before moving forward with any additional steps in the rulemaking process. However, in an April 16 announcement, OSHA confirmed that the virtual informal public hearing will begin on June 16, as previously scheduled, and continue on subsequent weekdays as needed.

The Biden administration published the proposed rule in the Federal Register on August 30, 2024, and OSHA took comments on it through January 14, 2025. The Federal Register notice said OSHA would hold an informal public hearing on the proposal if it received requests to do so in written public comments and announced the June 16 hearing before the presidential transition.

While the Trump Administration has confirmed plans to hold the informal public hearing on the Biden-era proposed rule aimed at preventing heat-related illnesses and deaths in the workplace, it remains uncertain whether the agency will finalize the rule amid industry and GOP lawmakers’ calls to scrap the rulemaking.

The prescriptive heat standard proposed by the Biden Administration, if finalized, would apply to all employers nationwide and be triggered when employees are exposed to a heat index of 80°F for more than 15 minutes in any given sixty-minute period, and it would require, among other things, a written heat injury and illness prevention plan; substantial heat injury-related precautions; training; recordkeeping; and regular, comprehensive program reviews and updates. Commenters have stated that the proposed standard would result in OSHA micromanaging workplaces, imposing unreasonable burdens, and creating confusion as to what employers would be required to do.

I’ve encouraged OSHA to withdraw the proposed standard so that one can be promulgated focusing on heat injury and illness prevention using a performance orientation that will allow employers to tailor their protections to their geography, environment, workplaces, and workers. Using this alternative approach, employers would be expected to incorporate widely accepted elements for an effective heat illness and prevention program—training, acclimatization/enhanced supervision for new or returning employees, and the provision of water, rest, and shade—but the ways in which they do so should be driven by the goal of protecting workers rather than meeting OSHA’s specifications for each element.

Those interested in speaking at the public hearing must complete a notice of intention to appear form by May 2 and must indicate if they intend to submit written materials in support of their testimony. If I can help any company that is interested in participating, I’m here!

You do not need to sign up if you only intend to watch the hearing (instructions for viewing the hearing will be posted separately).

2. A Second Lawsuit Challenges the Constitutionality of OSHRC

On April 15, a second lawsuit was filed arguing that the structure and processes of the Occupational Safety and Review Commission are unconstitutional. In Flying Pumping Services, Inc., a pumping services provider relies on the Supreme Court decision in SEC v. Jarkesy for support of its claims filed in a Texas federal court that OSHRC violates the Constitution in multiple ways. In Jarkesy, the Supreme Court held in 2024 that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial. Now, in two recent complaints, employers are seeking to rely on Jarkesy to attack proceedings before OSHRC.

Like a case filed in New Jersey last year, Kenric Steel, LLC v. DOL, Flying Pumping Services claims that Members of the Review Commission are unconstitutionally insulated from removal and its Administrative Law Judges are unconstitutionally appointed and, once appointed, unconstitutionally insulated from removal. In addition, the employer argues that when an ALJ adjudicates an OSHA citation, it is unconstitutionally being deprived of the right to a jury trial.

In making these claims, Flying Pumping Services, along with Kenric Steel, cite Jarkesy and rely upon an earlier case, Atlas Roofing Co., Inc. v. OSHRC, which specifically addressed the constitutionality of the Review Commission proceedings that do not provide a right to a jury trial.

These cases have raised interesting arguments, especially given that the Jarkesy Court expressly discussed Atlas Roofing and declined to overrule it therein: “Because the public rights exception as construed in Atlas Roofing does not ex­tend to these civil penalty suits for fraud, that case does not control. And for that same reason, we need not reach the suggestion made by Jarkesy … that [subsequent Supreme Court decisions] effectively overruled Atlas Roofing to the extent that case construed the public rights exception to al­low the adjudication of civil penalty suits in administrative tribunals.” The Jarkesy Court went on to explain: “[T]he OSH Act did not borrow its cause of action from common law. Rather, it simply commanded that ‘[e]ach employer … shall comply with occupational safety and health standards promulgated under this chapter.’ … These standards bring no common law soil with them.”

While the majority opinion in Jarkesy does not expressly overrule Atlas Roofing, there is enough discussion in it, and amplified by Justice Gorsuch’s concurring opinion, that one might think that the Supreme Court would like the right case to revisit its holding in Atlas Roofing and its application to OSHRC.

I think this may be especially true for a Section 5(a)(1) case, which is the basis of the alleged violation in Flying Pumping Services, where the OSHA citation is not based on a regulation but the general duty of an employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The Complaint in Flying Pumping Services states that “the General Duty Clause in essence is a codification of common law negligence.” The Complaint also claims that “[t]o the extent Atlas Roofing is still good law, the decision is not controlling as to the alleged General Duty Clause violation.” It will take time for the courts to determine the merits of both the Flying Pumping Services and Kenric Steel cases and to see if they reach the Supreme Court, but they are worth following. In these cases, I think there is a bit of “be careful what you wish for.” I know few employers that would prefer a jury trial over the expertise of the OSHRC ALJs and its commissioners.

Meanwhile, OSHRC will lose its only remaining Commissioner, Cindy Attwood, when her term expires April 27. While Deputy of Labor Solicitor Jon Snare was recently nominated to serve, it is unlikely he will be confirmed at least in the next month; even if he is, the Review Commission needs two commissioners to have a quorum. See my earlier post on the Review Commission.

3. New Presidential Memorundum Directs the “Repeal of Unlawful Regulations”

On April 9, the Trump Administration issued a Presidential Memorandum (Memorandum), Directing the Repeal of Unlawful Regulations, which is part of the Administration’s broader deregulatory actions, including its February Executive Order 14219, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative. The Memorandum instructs agencies to identify “certain categories of unlawful and potentially unlawful regulations” and “begin plans to repeal them.”

The Memorandum states that agencies’ review-and-repeal effort shall prioritize regulations’ unlawfulness under ten U.S. Supreme Court decisions, including the recent decisions in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine, and SEC v. Jarkesy.

The White House issued a Fact Sheet about the Memorandum, which states that, “agencies are to repeal any regulation that is not consistent with the ‘single, best meaning’ of the statute authorizing it[, and] [a]gencies … are to repeal any regulation that was promulgated in reliance on the Chevron doctrine.” The Fact Sheet also describes Jarkesy as holding “that it violates the Seventh Amendment for agencies to adjudicate common-law claims in their in-house courts. Agencies accordingly must repeal any regulation authorizing enforcement proceedings that enable the agency’s courts to impose judgments or penalties that can only be obtained via jury trial in Article III Courts.”

What is most interesting about the Memorandum targeting regulations in the Administration’s crosshair is that the White House intends for agencies to skip the Administrative Procedure Act’s (APA) notice-and-comment requirements, which are generally required to make or repeal regulations. As the Supreme Court stated in Perez v. Mortgage Bankers Association, the APA “mandate[s] that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”

In seeking to side-step the notice-and-comment provisions of the APA, the Memorandum relies upon a statutory exception to the rule, known as the “good-cause exception.” That provision of the APA provides that an agency need not use notice-and-comment rulemaking “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

The Memorandum, in claiming that the good-cause exception applies to the repeal of some regulations, states that “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest.” In addition, the Memorandum says that “notice-and-comment proceedings are ‘unnecessary’ where repeal is required as a matter of law to ensure consistency with a ruling of the United States Supreme court.”

Federal Courts, however, have narrowly construed the good cause exception, reasoning that such a construction is necessary to avoid swallowing the APA’s general requirement that agencies engage in notice-and-comment rulemaking for making, amending, or repealing federal regulations.

4. White House Seeks Public Input on Ideas for Deregulation

If you’d like to weigh in on the Administration’s deregulatory efforts, here’s your chance! On April 11, 2025, the Trump Administration published a Notice of Request for Information (RFI), soliciting “ideas for deregulation from across the country.” The public can submit written comments until May 12, 2025.

In the RFI, the White House’s Office of Management and Budget (OMB) asks commenters to inform deregulation efforts by identifying “any and all” regulations “currently in effect” that should be rescinded or replaced. The RFI states that “Americans are the most inventive, hardworking, and industrious people in the world,” but they “have been stunted by onerous and unnecessary regulations” “for too long.”

Specifically, OMB is looking for regulations that “stifle American businesses and American ingenuity” and are “unnecessary, unlawful, unduly burdensome, or unsound.” OMB is particularly interested in regulations that are inconsistent with statutory text or the Constitution; where costs exceed benefits; where the regulation is outdated or unnecessary; or where the regulation is burdening American businesses in unforeseen ways.

The RFI requests comments on the background of the targeted regulation and “detailed reasons” for why it should be rescinded. OMB’s RFI aligns with President Trump’s broader deregulation initiative and executive actions directing agencies to minimize regulatory burdens on the American public.

If I can help with comments for your company, I'd love to work with your organization!

5. 2024 Injury and Illness Data Now Available

OSHA’s collection of 2024 work-related injury and illness data from establishments that are required to submit data from Form 300A (Summary of Work-Related Injuries and Illnesses) through the agency’s Injury Tracking Application (ITA) is now publicly available. Employers that meet specific industry and employment size specifications were required to submit their 2024 data by March 2, 2025.

In a April 17 press release, OSHA stated that the 2024 injury and illness data comes from 370,000 reports. In addition, OSHA posted “partial data from more than 732,000 OSHA Forms 300 Log of Work-Related Injuries and Illness and Form 301 Injury and Illness Incident Report records.”

While OSHA states that it takes steps to protect worker privacy and claims that providing access to the injury and illness data will “assist in identifying unsafe conditions and workplace hazards that may cause occupational injuries and illnesses,” the reporting rule creates various concerns due to the public disclosure of employer safety data, such as revealing proprietary information, including the number of workers at a facility, and the identity of the injured employee, even if Personally Identifiable Information (PII) is not submitted, based on other information published regarding the injury and its location. In addition, the release of the data may create a chilling effect because the injuries and illnesses may be misinterpreted or misrepresented by the media, critics, or competitors.

The expanded electronic injury reporting requirements were reinstated by the Biden Administration effective January 1, 2024. It remains to be seen whether the Trump Administration will seek to scale back the regulation as it was in 2019 during President Trump’s first term.

6. Join Me for a Webinar: The Future of Safety—Technology for Smarter Workplaces

It is a critical time for companies and the way they approach safety. Companies that aren’t proactive will have more injuries than their industry peers and face greater costs, both direct and hidden. One of the most promising trends impacting workplace safety (along with transforming many aspects of industry!) is the use of AI. Join me on May 8 from 1:00-2:30 PM ET for The Future of Safety: Technology for Smarter Workplaces, an interactive panel discussion, and the first in a series, as we dive into how cutting-edge innovations are reshaping safety across industries. Register here.

7. And last but not least, Sign Up for My Newsletter … The first one will be sent in a few days!