Articles

Expect major changes in workplace regulation in 2025


While it's generally accepted that the Trump administration will adopt more employer-friendly policies than the Biden administration, it's not clear how quickly the incoming administration will turn its sights to workplace safety. Since career employees and regional directors don't change with the administration and states can step in with regulations, change will take time and vary by region and state. Employers will need to actively monitor regulatory changes at the federal, regional, and state levels in 2025.

OSHA

The surprise appointment of Oregon's former representative, Lori Chavez DeRemer, known as the most pro-union Republican in Congress, for Secretary of Labor, and Candidate Trump's courting of the union vote, has made some question if there will be greater sensitivity to labor issues than under the first administration. While OSHA operated without a confirmed assistant secretary throughout Trump's entire first term, and President-elect Trump has not yet nominated one, it's expected a choice will be made soon that should clarify the agency's enforcement agenda for 2025.

Here are ten issues to follow:

  1. Electronic recordkeeping requirements

    In Trump's first administration, the Obama recordkeeping regulation was amended to require employers to electronically submit only summary data on Form 300A, but the Biden administration released a new rule requiring establishments with 100 or more employees in certain designated industries to electronically submit Forms 300 and 301 to OSHA each year. For the first time in December, the agency publicly released this data. This rule will probably be rescinded, and Trump will lessen the regulatory burden.

    However, agency rulemaking takes significant time. The Biden change did not go into effect until 2024. Therefore, employers must continue to comply with the current rule, which requires certain employers to electronically submit Forms 300 and 301 by March 2, until a new rule is enacted.

  2. Heat injury and illness prevention in outdoor and indoor work settings

    The comment period for the proposed heat injury and illness prevention rule was extended until January 14, 2025. Many OSHA pundits expect that the rule will be scaled back dramatically, delayed, or even undone under the Congressional Review Act (CRA) by the Trump administration. Further, while the National Emphasis Program for Outdoor and Indoor Heat-Related Hazards is in effect now, it is set to expire in April 2025 and its future is uncertain. Employers can continue to be cited under the General Duty clause for heat-related violations and the National Emphasis Program on Warehousing and Distribution Center Operations, which includes heat hazards, does not expire until July 2026.

    Also, remember that state obligations related to heat will remain in effect.These include:

    If the federal standard is scrapped, it's expected that more states will consider adopting a state statute or regulation.

  3. Walkaround rule

    The final "walkaround rule," which allows an employee to request that a third party (including union officials) accompany OSHA Compliance, Safety and Health Officers (CSHOs) on an inspection of a workplace went into effect on May 31, 2024. The controversial rule is being challenged in court and a lawsuit pending in the federal District Court for the Western District of Texas, Chamber of Commerce vs. OSHA, may be a viable way to block or withdraw the rule. President Trump could leave it up to the court, drop the government's defense of the rule, settle with the plaintiffs and abandon the rule, or withdraw the rule if the Chamber of Commerce does not prevail.

  4. PPE rule for construction

    A revision to the personal protective equipment (PPE) rule for construction was finalized on December 11, 2024, and went into effect on January 13, 2025. The rule requires that PPE is not only appropriate for protecting against specific job hazards but also fits each worker properly based on their body size and shape. The construction industry has expressed concern that the requirement that an employee's PPE must "fit properly" is not defined in the standard. While this rule may be rolled back by the Trump administration, employers should be mindful of its effective date and stay alert to future actions.

  5. Emergency response standard

    An informal public hearing was held November 12, 2024, through December 4, 2024 on the emergency response standard and the post-hearing comment period is open until January 17, 2025. Given the opposition and confusion surrounding this rule, many expect it to fade away.

  6. Infectious disease standard

    After almost a decade, the proposed infectious disease standard for healthcare facilities and other "high-risk" environments was submitted to the White House Office of Management and Budget (OMB) for review on November 8. There is a push by the current administration to publish the final rule before Inauguration Day, but its fate will be determined after President-elect Donald Trump takes office.

  7. Other rules expected to advance before Inauguration Day

    In addition to the infectious disease standard, the Biden OSHA could advance rules related to fall protection mandates for elevated walking surfaces and two statute-specific whistleblower protection procedures related to handling retaliation complaints, according to the Fall 2024 regulatory agenda. The agency reopened the Walking-Working surfaces record because it had received feedback from stakeholders indicating that several regulatory provisions of the 2016 final rule on Walking-Working Surfaces (81 FR 82494) are unclear. The revisions will correct a formatting error in Table D-2 and revise the language of the requirements for stair rail systems to make them clearer.

  8. Whistleblower and anti-retaliation claims

    It's expected that the increase under the Biden Administration of whistleblower investigation programs will be substantially rolled back.There may be a return to the more business-friendly Voluntary Protection Program (VPP) and cooperative compliance programs.

  9. Enforcement activity

    Given the incoming Administration's focus on deregulation and limiting government spending, expect to see a rollback of enforcement policies and practices adopted by the Biden administration, such as the expanded application of its instance-by-instance citation policy, the lowered thresholds for inclusion in the Severe Violator Enforcement Program (SVEP), and the more aggressive use of egregious, willful and repeat citations. It's also expected that some emphasis programs set to expire will not be renewed, but this will vary by state and region. Also, there will be fewer or no shaming press releases.

    During President Trump's first administration, OSHA had the fewest CSHOs in history. Expect to see a lower budget and no effort to fill vacant enforcement positions. However, enforcement will continue with shifted priorities. Rather than mandating new standards, it's anticipated the General Duty Clause will be used for enforcement of safety concerns not covered by existing standards, such as workplace violence. Recent Supreme Court decisions will also bolster deregulatory efforts.

  10. OSHA State Plans and legislative actions

    If the expected decline in federal regulation and enforcement does occur, expect to see heightened activity by some OSHA State Plans and state legislatures in workplace safety and health enforcement. Cal/OSHA continues to lead the way and in 2024 adopted new rules related to workplace violence, indoor heat, lead, first aid kits, process safety management, household domestic workers, and silica. In addition to Cal/OSHA, other states including Oregon, Michigan, Illinois, New York, Washington, and Nevada will promote stricter safety regulations.

DOL - Independent contractors

Under the first Trump administration, the DOL finalized a rule making it easier to classify workers as independent contractors, but it was never implemented by the Biden administration. The proposed rule is likely to be reinstated. The 2021 independent contractor regulation focused on two "core" factors regarding the worker's control of their work and the worker's profit and loss in performing the work. If those two "core" factors were met, the worker was an independent contractor; however, if one of the two "core" factors was not met, then three additional "non-core" factors would be analyzed.

NLRB

Under General Counsel Jennifer Abruzzo, the National Labor Relations Board (NLRB) has had an aggressive agenda applauded by labor advocates and unions. The Democrats' majority on the Board will end sooner than many expected, as the Senate declined to reconfirm Chair Lauren McFerran, a Democrat, to the Board. Expect to see a new General Counsel and Board member in place quickly who will work to undo much of the recent action taken by the NLRB.

Immigration reform

Promising to carry out the largest deportation operation in U.S. history, Trump is expected to make immigration reform a centerpiece of his administration. U.S. employers, particularly those in the manufacturing, food processing, agricultural, construction, and hospitality industries with unskilled workforces, should prepare for ramped-up government immigration enforcement. This could mean more workplace audits, raids, and scrutiny of employee documentation. In a recent blog, East Coast Risk Management, a member of the Institute of WorkComp Professionals, discussed five steps to mitigate risks and ensure compliance with immigration policies.Employers that rely on the H-1B visa program for highly skilled foreign workers could see the program curtailed.

This emphasis on tightening immigration could place a strain on hiring efforts and employers likely to be affected should focus on retention.

EEOC

While a Democratic majority on the Commission means significant changes at the EEOC probably will not take place until 2026, it's anticipated the new administration will take a more conservative stance on diversity, equity, and inclusion (DEI) initiatives, and revise or reverse policies aimed at strengthening protections for LGBTQ+ and pregnant workers. On the other hand, the administration is expected to ensure religious organizations have clear and appropriate exemptions.

Although its position on discrimination laws and AI and other technology is unknown, the area has been a focus of the EEOC. Employers should remain vigilant in avoiding related discrimination issues and stay abreast of EEOC communications. Most recently, EEOC has issued a fact sheet on wearable technology in the workplace.

Artificial intelligence

During his campaign, President-elect Trump promised to repeal a sweeping AI Executive Order issued by the Biden Administration, but it's unclear how he will approach AI issues. Some expect it to be "hands-off" with no federal action at the agency or legislative level. If that's the case, expect to see more states begin to regulate AI and an increase in the litigation landscape of this rapidly growing field. A recently released Bipartisan House Task Force Report on Artificial Intelligence calls for a sector-specific, risk-based approach to AI governance and provides insights into possible AI policy legislation.

State laws and regulations

According to the National Council on Compensation Insurance's (NCCI) 2024 Regulatory and Legislative Trends report, mental injuries (such as post-traumatic stress disorder), cannabis, and independent contractors were among the top workers' compensation-related issues that state legislatures focused in 2024. While presumption laws for first responders have dominated workers compensation legislation for years, the trend to include compensability for psychological injuries seems to be waning, with only three states enacting legislation. Several states acted to expand coverage, including cancer. As of July 31, 88 percent of the proposed workers compensation bills failed.

For a list of enacted legislation by state as of 12/31/24

In 2025, it's expected that cannabis, heat illness prevention, the gig economy, AI, independent contractors, and mental injuries will dominate state legislative proposals.