OSHA News Wrap Up for March 2025

Sharing some OSHA-related news, and my thoughts, as we wrap up the month of March—

1.   Biden-Era OSHA Regulations Under Attack:

Republicans on the House Workforce Committee are urging the Department of Labor to withdraw proposed OSHA regulations and rescind final Biden-era ones as part of a broader push to overhaul “burdensome” regulations from the department. House Education and Workforce Committee Chairman Tim Walberg (R-MI) wrote in a March 19 letter to recently confirmed Labor Secretary Lori Chavez-DeRemer, “I encourage DOL to enforce its laws while providing robust compliance assistance to workers and businesses instead of continuing the enforcement-only approach taken by the Biden-Harris administration.” Among the DOL rules Walberg encourages DOL to withdraw or rescind are four OSHA rules—the final Worker Walkaround Representative Designation Process (the Walkaround Rule); the final changes to the Recordkeeping Rule; the proposed Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings (the Proposed Heat Rule); and the proposed Emergency Response rule.

The Walkaround Rule has been challenged in Texas, where a coalition of business associations filed a lawsuit against OSHA in Chamber of Commerce of the United States of America, et al. v. OSHA, et al. The pending lawsuit argues that the Walkaround Rule exceeds the agency’s statutory authority and violates employers' constitutional rights. I represent a number of business associations, along with John Ring of Morgan Lewis, that filed an amici curiae brief in support of the plaintiffs’ challenge. A ruling from the Western District of Texas could come anytime. I predict that the court will rule in favor of the Chamber of Commerce and vacate the Walkaround Rule.

The Proposed Heat Rule is under review by OSHA following a comment period that concluded in January 2025, resulting in over 43,000 comments, including these submitted by the Chamber of Commerce which urge OSHA to withdraw the proposed standard so that a revised one that is performance-oriented and less burdensome can be proposed. At this stage of the rulemaking process, OSHA may choose to: (a) issue it in its current or a similar form, (b) eliminate it entirely, or (c) revise it to lessen the burden on employers while maintaining employee protections.

While I support a heat rule, and in fact encouraged OSHA to promulgate a heat rule in the Commission decision A.H. Sturgill Roofing, Inc., where the majority expressed concern with the use of the general duty clause in imposing requirements on employers in this area, the proposed Heat Standard is drafted as a “one-size-fits-all” with requirements that are difficult to implement and administer. I encourage OSHA to withdraw the proposal standard and revise it to focus on preventing heat injury and illness prevention using generally 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 with a performance orientation providing more flexibility and allowing employers to tailor their program to their work environment and workers.

The Teamsters appear to have influence on Secretary of Labor Chavez-DeRemer, including allegedly using a “veto” to prevent me from becoming the nominee for Assistant Secretary of Labor, OSHA. Given this weight, I expect some form of a heat rule to be finalized that is closer to the proposed standard. Here are the Teamsters’ comments on the proposed heat rule.

 

2.   Jon Snare Nominated for the Occupational Safety and Health Review Commission:

President Trump has nominated Jon Snare to be a Commissioner, Occupational Safety and Health Review Commission. Until we both departed Morgan Lewis recently, Jon was a partner of mine. Jon will be a great Commissioner, and he would be an excellent Chair too—if he receives that designation from President Trump following Senate confirmation as Commissioner. With Jon I don’t worry about “groupthink” (which can occur when commissioners have a desire to reach consensus). Jon is very thoughtful and diligent in his work, and I think he will issue well-reasoned OSHRC decisions.

As I previewed stated in a recent blog post, upon the conclusion of Cindy Attwood’s term as Commissioner on April 27, the Review Commission will not have a single Commissioner. Given how long the confirmation process takes coupled with the need to get the Commission back to a quorum or at least with a Chair following Cindy’s departure, I would expect to see Jon confirmed this summer or fall.

 

3.   Look to See If Other OSHRC Nominations Follow:

We’ll continue to look to see if the Trump Administration nominates two more commissioners for OSHRC, to get it to its full complement—that is, if President Trump wants to see OSHRC continue to function as an independent federal agency. If the nominations follow the typical path, look to see one nomination to include someone with a background in industry or in representing employers, and the other to have a background in government, labor union, public advocacy, or representing employees.

Amanda Wood Laihow, who previously served as an OSHRC commissioner, may get the second nomination.  Although her current role as Acting Assistant Secretary, OSHA, may complicate that choice. Perhaps, she prefers to stay at OSHA as a Deputy Secretary for OSHA (which doesn’t require Senate confirmation), or it may be that moving to OSHRC following serving as Acting Assistant Secretary creates issues for potential conflicts should she need to decide cases at the Review Commission that were pursued during her time at OSHA.

For the third seat, in my opinion, so I’m just putting it out there, Nadine Mancini, General Counsel of OSHRC would be a great choice. However, I have no inside information on that one; just think highly of her, as do many.

4.   OSHA’s Multi-Employer Citation Policy Challenged:

This week the Court of Appeals for the 11th Circuit heard an appeal from a roofing contractor in FAMA Construction LLC v. OSHRC, claiming that OSHA’s Multi-Employer Citation Policy is unconstitutional. FAMA stated that OSHA should have only been permitted to penalize either the subdivision's general contractor or the employer physically present on-site, referred to as the "controlling employer.”

Based on the questions and statements of the judges, they do not appear inclined to agree. OSHA’s Multi-Employer Citation Policy allows the agency to cite more than one employer for safety violations—as either the creating, correcting, controlling, or exposing employer.

5.   Virginia Workplace Violence Prevention Bill Vetoed:

Virginia Governor Glenn Youngkin (R) has vetoed workplace violence prevention legislation that would have required employers to implement control measures to address workplace violence safety concerns, stating that the bill is unnecessary. If it had been signed into law, it would have required employers that have 100 or more employees “to develop, implement, and maintain a workplace violence policy no later than January 1, 2027.”

While there is no specific OSHA regulation on workplace violence, OSHA has used the general duty clause for citations alleging a hazard of workplace violence. When I was Chair of OSHRC, in 2019, the Commission issued a decision in Integra Health Management, Inc. The Integra decision is significant because it found that, although OSHA does not have a specific standard addressing workplace violence, employers can be cited for failing to address the risk of violence under the general duty clause.

But because of the lack of a federal standard, states are anticipated to take the lead on this issue. In recent years, workplace violence has become a growing concern for lawmakers across the U.S., especially in healthcare settings, where the risk of violent incidents is higher. Several states, including California, Connecticut, Illinois, Louisiana, Maine, Maryland, Minnesota, New Jersey, New York, Oregon, Texas, and Washington, have enacted laws or regulations requiring healthcare employers to implement workplace violence prevention programs. This year, lawmakers in several other states, including Alaska, Massachusetts, New York, Ohio, Washington, and Wyoming, are already considering bills to address workplace violence prevention requirements or expand existing regulations.

In particular, employers in the health care industry, as well as home and community support services, are advised to assess the risk of workplace violence and conduct a review of their safety policies, procedures, and training programs to ensure that they adequately address the risk of physical assault by patients.