By Michael Metz-Topodas, Saul Ewing LLP
The swearing in of a new Congress on January 3, 2023 could mean significant changes for the Occupational Safety and Health Administration (OSHA) and its safety regulation of construction, manufacturing, and other industries—but probably not. In the current political climate, Congress will likely leave OSHA largely untouched by legislation and oversight and free to pursue its enforcement and regulatory agenda.
Legislation
Congress will unlikely pass any legislation in the next two years that will affect OSHA’s operations. Due to a Republican-controlled House of Representatives, a Democrat-controlled Senate, and hyper-partisan spirit, Congress has few, if any, areas where it could craft laws on which the required majority in both chambers could agree. Further, despite the controversy surrounding the COVID-related Emergency Testing Standard (sometimes called OSHA’s “vaccine mandate”), no issue has captured Congress’s attention that could result in new laws that would substantially affect OSHA.
Oversight
Similarly, Congressional oversight, however intense in other areas, likely will not take aim at OSHA or matters related to the agency. Congress routinely exercises its power to investigate executive branch agencies’ operations, as their authority to operate comes from Congress. Even before Republican legislators officially won House control, they were announcing they intended to take full advantage of the oversight tool. They have identified several areas for investigation, such as border security, COVID-19’s origins, pandemic relief fraud, and cryptocurrency, to name a few. These anticipated inquiries do not include OSHA, nor touch upon OSHA-related activities. With such a broad range of investigative priorities, Congress will likely not get through all these investigations, let alone add any new initiative that would touch OSHA.
Enforcement
Although this new Congress likely will not significantly impact OSHA, former Congressional acts will continue the current trend in increased enforcement. Since 2018, OSHA has had some of the lowest levels of Compliance Safety and Health Officers (“CSHO”s) in its history resulting in fewer inspections and citations. Recent increases to OSHA’s budget, however, have allowed for greater hiring, including more CSHOs. More inspectors have meant more inspections, enforcement measures, and citations. With further budget increases expected, this trend will likely continue.
Regulations
Independent from any Congressional involvement, OSHA will continue pursuing its regulatory agenda as many new standards are moving through the approval process, including those in these areas:
- Process Safety Management and Prevention of Major Chemical Accidents
- Workplace Violence
- Infectious Diseases
- Communication Tower Safety; and
- Infrastructure-related Fall Protection.
The new calendar year will feature an updated agenda for OSHA that will offer further insight on upcoming regulatory developments. For further insight on how OSHA will impact contractors and other businesses in 2023, you should contact your OSHA counsel.
About the Author:
Michael Metz-Topodas is a partner in the Construction Group at Saul Ewing. His practice includes construction litigation, day-to-day project and claims counseling, and OSHA compliance and citation defense. Mr. Metz-Topodas represents general contractors, subcontractors, owners, designers, and suppliers on private, public, and federal projects. He counsels clients and handles construction disputes involving delay and inefficiency claims, design and construction defects, unforeseen site conditions, project scope disputes, bid protests, and payment claims, including mechanics liens, bond claims, and Miller Act claims. He can be reached at michael.metz-topodas@saul.com.
