OSHA during the first term of the Obama Administration featured a heavy focus on enforcement, at the expense of compliance assistance, and despite a lot of talk, also at the expense of any meaningful new rulemaking activities. There are signs now, however, that OSHA may be renewing a push for a more active rulemaking calendar during the Administration’s second term.
The first sign has been a series of speeches and public statements by OSHA’s Administrator, Dr. David Michaels, in which he has characterized the development of a proposed Injury and Illness Prevention Program (I2P2) rule as his and the Agency’s “highest priority.” The I2P2 rule is being designed to compel employers to “find and fix” hazards, and would have significant implications for employers across all industries. During a presentation at a safety conference in June, Michaels explained that “I2P2 would require employers to have an ongoing, investigative, preventative process in place instead of being reactive and addressing problems after an accident occurs.” OSHA’s leadership characterizing the I2P2 rule is a top priority is not new, but now that we are passed the 2012 Presidential Election, actual movement on the proposed rule is realistic.
Second, we are hearing that the Department of Labor’s Spring Regulatory Agenda is expected to return several OSHA rulemaking initiatives, including the I2P2 rule, from the backburner, where they were deposited prior to the 2012 Presidential Election, back to the active rulemaking calendar. For the moment, we are left only to guess about that active rulemaking calendar because the Department of Labor is once again significantly overdue, already by two months, publishing the Regulatory Agenda. Congressional Republicans have criticized the Agency’s lack of transparency resulting from the delay, claiming the Administration is playing a game of regulatory hide-and-seek.
Finally, although OSHA has not made an official announcement yet, sources report that OSHA will soon promote Dorothy Dougherty, current Director of OSHA’s Directorate of Standards and Guidance, as its new Deputy Assistant Secretary, the most senior career position within OSHA. Ms. Dougherty will replace former Deputy Assistant Secretary Richard Fairfax, who retired in early May of 2013. This move is significant because, as her most recent title indicates, Ms. Dougherty’s long career at OSHA has included a heavy focus on the development of workplace standards, regulations, and guidance, and therefore may be another sign that OSHA plans to prioritize rulemaking over the balance of the Obama Administration’s time in office.
Ms. Dougherty began her career with OSHA in 1992 as Chief of the Compliance and Technical Guidance Division (another non-enforcement role) for the Office of the Federal Agency Programs. Since that time, Ms. Dougherty has assumed several other leadership positions within the Agency, many of which focused on rulemaking and compliance assistance. She has served nearly seven years in her current position as Director for the Directorate of Standards and Guidance. Ms. Dougherty is well-liked within the Agency and has received high praise from current and former peers for her managerial skills and ability to work collaboratively with others, including appointed officials from both sides of the aisle.
Although OSHA’s enforcement efforts have reached record levels in essentially every measurable metric, its rulemaking activities have been somewhat stagnant. Many have claimed that the agency is broken and that its rulemaking process is “mired in bureaucracy.” During President Obama’s first term, OSHA laid out a number of rulemaking initiatives in its periodic Regulatory Agenda updates, including rules for combustible dust, crystalline silica, beryllium, and the IIPP rule. Virtually all of these proposed rulemaking initiatives, however, have missed key rulemaking deadlines or were expressly set-aside altogether. Given Ms. Dougherty’s experience in marshaling proposed rules to become Final Rules in the Directorate of Standards and Guidance, and her reputation for being an effective manager, we anticipate stronger efforts by OSHA to implement new rules and regulations over the next four years. To be clear, however, there is little doubt that OSHA will continue with its aggressive enforcement in parallel.
Daniel C. Deacon, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s Washington, DC office, contributed to the preparation of this post.