Recent OSHA Activity Hints at What It Seeks to Accomplish in Trump Administration (Part I)

Some musings from Jim Frederick and Heather MacDougall for workplace health and safety watchers

Recent OSHA activity suggests how the agency seeks to shape workplace health and safety policy during the current Trump administration. Our updates are broken into two Parts: OSHA’s Regulatory Agenda (Part I) and Proposed Heat Rule (Part II).

This is Part I:

Overview of OSHA's Regulatory Agenda

First, let’s take an early glimpse into OSHA’s regulatory agenda for the current Trump Administration.

Those looking to understand the priorities and direction of workplace health and safety policy often turn to OSHA's regulatory agenda for insight. Many people wonder: what exactly is the OSHA regulatory agenda?” OSHA’s regulatory agenda is part of the federal government’s Unified Agenda of Regulatory and Deregulatory Actions from the White House’s Office of Management and Budget (OMB). If you look at the unified agenda currently, you will find the Fall 2024 version of the agenda.

The unified agenda is published twice each year. They are referred to as the Fall and Spring regulatory agendas but don’t look for colorful foliage and blooming tulips in Washington, DC when they are issued.  They are usually more of a Winter and Summer happening.

The unified agenda includes regulatory activities for more than 60 different government departments, agencies, and commissions. The agenda will provide the status of Advanced Notices of Proposed Rulemakings (ANPRMs), Notices of Proposed Rulemakings (NPRMs), Final Rules, Long-Term Actions (planned beyond 12 months), and Completed or Withdrawn Actions. Agencies categorize their rulemaking activities by the stage (e.g., NPRM) and with a priority designation (e.g., economically significant).

The Department of Labor’s portion of the Fall 2024 unified agenda provides the status of more than 60 rulemaking activities from various agencies in the Department of Labor. Twenty-three of these are from the Occupational Safety and Health Administration.

But wait, how many rules does OSHA finish? As the chart below indicates, since the artist formerly known as Prince told us to party like it’s 1999, not very many. In fact, an important takeaway from this chart is that there really aren’t that many major OSHA rules in total.

Completed major rules 1970-2024

If OSHA can’t complete very many rules, why are there almost two dozen rules on the agenda? Some of the items included on the regulatory agenda are not major rules, so a few more are completed than the chart shows (and several of the items from the Fall 2024 agenda may not be included on the Spring 2025 agenda).

OSHA Sought OIRA Review in June

However, another item that can be found on the OMB website is a list of rules that are in interagency review (or where review was completed in the past 30 days).  The OMB interagency review at the Office of Information and Regulatory Affairs (OIRA) is an impactful step in the federal rulemaking process. This step is designed to ensure that “significant” regulations proposed by executive agencies are consistent with the Administration’s policies, legally sound, and coordinated across the federal government. The step is supposed to take a few months with a possible extension, but sometimes it takes (much) longer. It is also possible for the public to request a “1286” meeting with OMB OIRA and share their thoughts, support, or concerns about the rule.

On June 18, 2025, nine new proposed rules from the Department of Labor (including 2 from OSHA) were added to the OMB OIRA website. Two OSHA proposed rules, which haven’t previously appeared in the unified agenda, were included in the interagency review process: “Updates to Respiratory Protection Standard Medical Evaluation Requirements” and “Interpretation of the General Duty Clause: Limitation for Inherently Risky Professional Activities.” All nine of the DOL rules, including the two OSHA rules, completed OIRA review on June 26.

(Lots of) Proposed and New Rules Drop July 1

But wait there’s more… At 8:45 am (Eastern Time) on June 30, 2025, the Federal Register (The Daily Journal of the United States Government) website updated and included twenty-five (yes that is 25) new proposed rules and one final rule from OSHA. These were all included for public inspection, which in pre-internet times meant that they were “on the table” for public inspection before being printed officially in the Federal Register. They were officially published in the Federal Register on July 1, starting the timeline for any comment period.

This may or may not be a record number of proposed rules issued in one day for OSHA, but it is certainly significant in worker safety and health policy. The proposed rules included the two rules that had concluded review on June 26 as well as several others that had not been required to complete the interagency review process.

The final and proposed rules include the following:

• 218-AD72 Construction Standards - Advisory Committee on Construction Safety and Health (the one final rule)

• 1,2-dibromo-3-chloropropane

• 1,3-Butadiene

• 13 Carcinogens (4-Nitrobiphenyl, etc.)

• Acrylonitrile

• Amending the Medical Evaluation Requirements in the Respiratory Protection Standard for Certain Types of Respirators (concluded OIRA review on June 26)

• Asbestos

• Benzene

• Cadmium

• Coke Oven Emissions

• Construction Illumination

• Cotton Dust

• Ethylene Oxide

• Formaldehyde

• House Falls in Marine Terminals

• Inorganic Arsenic

• Lead

• Methylene Chloride

• Methylenedianiline

• Occupational Exposure to COVID–19 in Healthcare Settings

• Occupational Injury and Illness Recording and Reporting Requirements; Withdrawal

• Occupational Safety and Health Standards; Interpretation of the General Duty Clause: Limitation for Inherently Risky Professional Activities (concluded OIRA review on June 26)

• Open Fires in Marine Terminals

• Rescission of Coordinated Enforcement Regulations

• Safety Color Code for Marking Physical Hazards; Textiles; Sawmills; Safety Color Code for Marking Physical Hazards for Shipyard Employment

• Vinyl Chloride

For the most part, these aren’t complete revisions to the existing OSHA standards. The standards that address exposure to hazardous materials (from arsenic to coke oven emissions to vinyl chloride) are adjusting respiratory protection requirements. The model at OSHA had been to include specifics about respiratory protection in the individual rules (often including specific respiratory protection types); these changes will shift to the 29 CFR § 1910.134 Respiratory Protection rule in the Personal Protective Equipment Subpart, and employers may have added autonomy to choose respirators to mitigate the risk of worker exposure to the hazardous materials. OSHA is also proposing to remove some of the training requirements included in the existing rules (about respiratory protection).

In safety we often recognize red to denote danger and yellow to denote caution. This is in part from existing OSHA rules. OSHA is proposing to remove several long-standing standards related to the Safety Color Code for Marking Physical Hazards, including 29 CFR § 1910.144 in the “Safety Color Code for Marking Physical Hazards; Textiles; Sawmills; Safety Color Code for Marking Physical Hazards for Shipyard Employment proposal”.

For a number of years, OSHA has coordinated enforcement activities of basic safety and health standards for migrant farmworkers with other agencies at the Department of Labor. This coordination makes good sense because OSHA does not have the staffing level capacity to reach the migrant farmworker workplaces. One of the prosed rules, titled, “Rescission of Coordinated Enforcement Regulations,” will change the long-standing policy or ground rules for this coordination.

A couple of changes will impact the maritime sector. One rule titled, “Open Fires in Marine Terminals,” would rescind the prohibition of open fires—think burn barrels (mostly as heat sources for terminal workers). The second rule titled, “House Falls in Marine Terminals” will eliminate the long-standing rule that provides safeguards such as secure span beams, safe access for workers, and daily inspections of lifting gear.

Another proposed rule is to withdraw the longtime pending regulatory agenda item to re-add an MSD column on the OSHA log of injury and illnesses (300 Log).

The construction sector will be impacted by a number of these proposed rules, but specifically there is a proposed rule to rescind existing, long-standing construction illumination requirements. It seems that the objective of this to recognize this is mostly standard operating procedure on construction sites (except when it isn’t); when it isn’t, it will no longer be something that OSHA would cite the employer.

The proposal to amend the respiratory protection standard will change the medical evaluation for respirator users so that employers would be exempt from having workers medically screened before using a filtering facepiece respirator or a loose-fitting powered air-purifying respirator. 

OSHA Seeks Limitations on General Duty Clause

The proposed rule, 29 CFR § 1975.7, “Application of the General Duty Clause to Inherently Risky Professional Activities,” is particularly interesting; especially, as it had not previously appeared on the unified agenda. This proposed rule seeks to “clarify” OSHA’s interpretation of Section 5(a)(1) of the OSH Act—commonly referred to as the General Duty Clause. The General Duty Clause has historically served OSHA as an enforcement mechanism when no specific OSHA standard applies to a particular hazard.

From the proposed rule’s preamble, we know that it is based on then-Circuit Judge Brett Kavanaugh’s dissenting opinion in SeaWorld of Florida, LLC v. Department of Labor–a 2014 decision issued before Kavanaugh’s 2018 confirmation as a Supreme Court Justice. In SeaWorld, following the death of a whale trainer, the Supreme Court upheld an OSHA citation, finding that the theme park had violated the General Duty Clause by exposing trainers who worked in close contact with a killer whale during performances to recognized hazards.

Kavanaugh, in disagreeing with the majority, found that OSHA does not have general authority under the OSH Act to regulate participants taking part in the normal activities of sports events or entertainment shows. In in his dissent he stated: “In the real world, it is simply not plausible to assert that Congress, when passing the [OSH] Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.”

In proposing the new interpretation of the General Duty Clause, OSHA relies on Kavanaugh’s dissent and subsequent Supreme Court jurisprudence, including the Court’s 2022 decision in National Federation of Independent Business v. OSHA, which invalidated OSHA’s vaccine-or-test mandate, holding that the agency had exceeded its statutory authority under the OSH Act. The Court emphasized that OSHA was asserting regulatory power over a question of vast “economic and political significance” without a clear congressional mandate. This principle, known as the major questions doctrine, requires that Congress speak clearly when authorizing an agency to decide issues of significant national consequence.

As an aside, Occupational Safety and Health Review Commission then-Chairman Heather MacDougall (and current co-author of this newsletter) relied upon the Sea World dissent in opinions expressing her views on the limitations of the application of the General Duty Clause. See, e.g., A.H. Sturgill Roofing, Inc. (concurring opinion “express[ing] … concern that the Commission has been asked … to construe the general duty clause to cover work situations in ways that Congress never intended and to unreasonably stretch longstanding Commission precedent by applying the provision to broadly defined risks inherent in the work being performed,” such as excessive heat, “a condition that is 24 inherent in the performance of outdoor work”).

The proposed rule doesn’t go as far in questioning the use of the General Duty Clause as the view of OSHRC's then-Chairman, but it rules out the use of Section (5)(a)(1) for citing an employer where: “the activity is integral to the essential function of a professional or performance-based occupation;” “the hazard cannot be eliminated without fundamentally altering or prohibiting the activity”; and “the employer has made reasonable efforts that do not alter the nature of the activity to control the hazard (e.g., through engineering controls, administrative controls, personal protective equipment).

The proposed rule states that such sectors may include, but are not limited to:

(1) Live entertainment and performing arts.

(2) Animal handling and performance.

(3) Professional and extreme sports.

(4) Motorsports and high-risk recreation.

(5) Tactical, defense, and combat simulation training.

(6) Hazard-based media and journalism activities.

The public has until August 29, 2025, to submit comments on the proposed rule re-interpreting the General Duty Clause.

What’s Next for the Regulatory Agenda?

Many are expecting to see the 2025 Spring Unified Regulatory Agenda issued soon (perhaps as quickly as later this week). The unified agenda will include more information about these new proposed rules and how they may or may not impact workplace safety and health. We will report on the unified agenda as soon as it is released.

And look for Part II of our newsletter tomorrow.