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The federal government shutdown has passed the three-week mark and there is still no clear timetable for when it might be resolved.
For agencies like OSHA, that time lost during the shutdown is difficult to make up for necessary work.
“I think of it in terms of when I was a kid in school,” said Jim Frederick, principal of the Washington, D.C.-based consulting firm NexusHSE and a former deputy assistant secretary of OSHA under President Joe Biden. “If it’s a snow day, you miss the whole day.”
Compensating for this work can be difficult when time for specific lessons (or rulemaking) has been limited.
“They’re days away at the moment,” Frederick said. “That’s just a few weeks on the calendar that won’t be there anymore.”
Meanwhile, the Senate voted to approve a new agency head this month, but David Keeling has yet to be sworn in. Amid all the question marks, employers need to stay on top while the government remains shut down and look at what the priorities might be when it reopens, experts say.
Hard and fast deadlines
While the federal government is on hiatus, not everything comes to a complete halt. For example, while most offices are empty, about 20 percent of OSHA’s staff are still working, Frederick said. These are primarily field personnel for the most critical security needs.
But having this skeleton crew means OSHA still misses many deadlines. Still, employers should pay attention in the meantime, said Phillip Russell, Tampa, Fla.-based OSHA and Ogletree Deakins employment attorney.
OSHA is mandated to issue any citation within six months of the inspection. If that deadline falls within the closure period and OSHA doesn’t take action, the inspection is moot, Russell said.
At the same time, employers should still note that the 15-day period to contest a subpoena also applies.
“You have to pay attention, even if the government isn’t working, that doesn’t mean the deadline is over,” Russell said.
Chronology of the development of rules
With the “snow day” effect, prioritizing rulemaking may be vital for OSHA to figure out what work it wants to accomplish during President Donald Trump’s tenure.
For example, the proposed heat injury and illness standardfirst published in the summer of 2024, has a October 30 deadline for additional comments for any interested parties who were not available to comment publicly during last summer’s hearings.
Much of the time to review those comments may have passed, Frederick said.
The Biden administration had prioritized the heat rule. Even at a high rate, it took three and a half years to publish a rule that ultimately has not gone into effect. The current draft likely won’t become an enacted rule, said Heather MacDougall, a corporate security attorney and former vice president of security at Amazon.
Critics said the proposed rule was too specific and burdensome, calling instead for a performance-based, or more business-friendly, version.
However, MacDougall believes that an altered standard could occur. To implement it, however, the Trump administration would have to step in once OSHA reopens.
“The clock is ticking,” MacDougall said. “It’s probably not going to be easy to enact a rule, especially a rule like this heat rule, in the next three years.”
Downsizing, changing priorities
Since the start of his second presidency, Trump has sought to reduce the federal government workforce. During the shutdown, his administration announced 4,000 mass layoffsreported NPR. OSHA has not yet been targeted, for a few reasons.
“OSHA is broken, right?” Frederic said. “I mean, the budget is too small, they’re broke.” As a result, targeting your staff doesn’t save much money.
Meanwhile, MacDougall said he knew several OSHA employees, especially at the senior level, who took the “fork in the road” purchase offer..
“It would be very difficult for it not to affect OSHA’s work,” MacDougall said. “They lost a lot of people and their ability to hire replacements, I think, is also affected by what Trump does in terms of the government hiring freeze. So I think that will affect his agenda in terms of his inspection and enforcement priorities as well as what happens in rulemaking.”
With that change, MacDougall predicted more focus on cooperation and functioning as a resource for employers, rather than an agency focused on crafting new rules or enforcing existing standards.
