New OSHA Legislative Proposals
GOP opposition to OSHA’s emergency temporary standard for COVID-19 and other enforcement initiatives triggered responses from some federal OSHA states, threatening to withdraw from the program and run their own OSHA office. That threat was a nonstarter for a number of reasons – mainly the fact that any state-run OSHA program must be approved by the federal government AND be of equal effectiveness and stringency (although it can be more stringent, as occurs often with California’s regulations issued by CalOSHA). But a novel approach is now being pursued: nullification of OSHA itself!
On November 2, 2021, Rep. Andy Biggs along with several Republican cosponsors including Rep. Matt Gaetz, introduced HR 5813, the ”NOSHA Act.” The bill has only two sentences: “The Occupational Safety & Health Act of 1970 is repealed. The Occupational Safety & Health Administration is abolished.” Given that both the House and Senate are in Democratic control, and President Biden would never sign such legislation into law, this bill is aspirational in nature, but does provide insight into future actions depending upon the outcome of the 2022 elections.
Another GOP initiative to block OSHA from regulating COVID-19 vaccines was introduced as HR 5728 by Rep. Madison Cawthorn, with 7 original co-sponsors, in late October. The legislation would block the Secretary of Labor from using any funds to promulgate or enforce a rule mandating COVID-19 vaccines by employers. The “JAB Act’ (Justice for All Businesses Act) has similarly dismal chances of enactment.
Meanwhile, on the Democratic side of the aisle, Rep Andy Levin introduced HR 5664, “Keeping Workers Safe Act,” which would require the Secretary of Labor to issue a public notice regarding each enforcement action under the OSH Act that results in large penalties or where multiple violations or repeated other-than-serious violations are present. The legislation defines “large penalty” cases as those involving civil penalty assessments in an amount greater than $60,000, and public notice would also be triggered by multiple serious or repeated OTS violations. This legislation has a greater likelihood of passage. While Congress will adjourn at the end of December, legislation introduced in 2021 carries over to the 2022 congressional session.
Under Rep. Levin’s bill, OSHA would have to issue press releases no more than 7 days after the date when the citation is issued. Under the Trump administration, the opposite approach was taken, where OSHA was forbidden to issue press releases upon issuance of a citation, and could only do so after a case was finally adjudicated. However, that prohibition was issued as policy and so lapsed upon administration change. HR 5664 would codify this requirement to prevent it from fluctuating depending upon the party in control of the agency.